Protesting as a Terrorist Offense

Government Should Reform Laws That Treat Demonstrators as Armed Militants

I. Summary

In Turkey, many
hundreds of people currently face prosecution, or are serving substantial
sentences for terrorism convictions. Their “crime” was to engage in
peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have
allowed courts in Turkey to convict demonstrators under the harshest terrorism
laws, by invoking two articles of the Turkish Penal Code in combination with
the Anti-Terror Law. In July 2010, as this report was
being finalized, the government passed legal amendments to improve the treatment
of child demonstrators; but this report focuses mainly on adult demonstrators,
whose treatment remains harsh, disproportionate and ultimately violates several
human rights norms.

The vast
majority of demonstrators currently being prosecuted under terrorism laws is Kurdish,
and the laws are usually invoked in the mainly Kurdish-populated areas of
southeast Turkey, or in Adana and Mersin and other cities with large Kurdish
populations. People whose writings and commentary on
“the Kurdish question” in Turkey support positions perceived to be
similar to those of the outlawed armed Kurdistan Workers’ Party (PKK)
have long faced particularly harsh punishment under Turkish law. Now the courts
are applying the same or even harsher punishments to regular people who take to
the streets to demonstrate support for opinions the authorities perceive to be
similar to those of the PKK. While many of the prosecutions discussed in this
report involve allegations of stone-throwing or tire-burning at demonstrations,
the government’s increasingly harsh punishment of Kurdish demonstrators
does not appear to be a response to demonstrators’ violent acts, but
rather to their perceived ideological support for the PKK. The present laws fall
foul of the standards required by human rights
law and the rule of law that criminal offenses must be defined precisely and in
a foreseeable manner (the requirement of legality). Their application in
the manner documented in this report amounts to an arbitrary use of criminal
law in violation of international human rights standards and the rule of law. The laws also offend against international law as they
criminalize the legitimate exercise of freedom of opinion, expression, and assembly.
The imposition of aggravated punishment under the
Anti-Terror Law because an individual expresses a political opinion, as opposed
to the gravity of the unlawful activity, violates international human rights
law.

Official statistics are not available for the number of adults
and children convicted under terrorism laws and sentenced to prison for participating
in demonstrations, but Human Rights Watch estimates that the figure runs into
many hundreds. Anecdotal evidence from interviews with lawyers suggests that
the numbers have been increasing in the past two years, since an important
legal decision on the issue in 2008.

Turkey’s Kurdish citizens have frequently
protested publicly to express frustrations with the government’s policies
towards their culture, status, and rights, and, in recent years, the
imprisonment of Abdullah Öcalan, the PKK leader. For instance, on July 14,
2008, and from October 18 to 21, 2008, protests were held in various cities in
Turkey against Öcalan’s prison conditions and alleged ill-treatment.
Protests are also held every year on February 15, the day in 1999 that Turkish
authorities captured Öcalan in Kenya and brought him to Turkey. The
festival of Newroz/Nevruz (Kurdish and Turkish spellings in common usage in
Turkey), the Kurdish New Year, on March 21, often elicits demonstrations as
well as cultural celebrations. Protests took place prior to Turkey’s
March 29, 2009 municipal elections. There are also fairly frequent localized
protests in cities throughout southeast Turkey and in mainly Kurdish-populated
districts of cities such as Adana. These typically involve groups of youths and
children, who shout pro-Öcalan and PKK slogans, burn tires in the street, and
respond to police orders to disperse by throwing stones.

In the past, courts in Turkey convicted these protestors under
laws governing public order or of “making propaganda for a terrorist
organization” (Article 7/2, Anti-Terror Law). Yet in
recent years, criminal justice officials have deemed Kurdish protestors
demonstrating against Turkey’s policies towards the Kurds to be “committing
crimes on behalf of the PKK without being a member of that
organization” (Article 220/6, Turkish Penal Code). As a result,
they are prosecuted as if they were actually fighting the government as armed
“members” of the PKK (Article 314/2, Turkish Penal Code). These
serious charges, on top of more usual charges under the Law on
Demonstrations and Public Assemblies, could result in sentences of 28 years in
prison, or more, if there are repeated offenses. To date, the majority of
adults convicted under these laws have received prison terms of between seven and
15 years. Prior to a July 2010 legal amendment, child protestors typically
received prison sentences of between four and five years, though in 2010, at
least several children were sentenced to seven-and-a-half years in prison.

Law enforcement authorities and the courts
allege that the PKK and its representatives are organizing the demonstrations
as part of a wider policy to promote civil unrest, and even uprising, among
Kurds in towns and cities throughout Turkey. By way of evidence the
government and courts point to the PKK’s decrees issued at various
congresses, and the fact that senior PKK representatives use sympathetic media
outlets to issue “appeals” to the Kurdish population to take to the
streets in protest. Hence, the template for individual indictments includes an abstract
overview of PKK history and policies, followed by a statement of the alleged specific
criminal activities of the defendant. In none of the cases examined by Human
Rights Watch had prosecutors submitted evidence to establish that the
individual defendant either heard the PKK’s “appeal” or had
been directly instructed or motivated by the PKK to participate in the
demonstration, much less that the individual had any other specific link with
the PKK or committed a crime under its orders.

The Turkish
courts consider it no obstacle to conviction that the prosecution has failed to
provide evidence of the defendant’s specific intent to support or aid the
illegal activities of the PKK. The General Penal Board of the Court of
Cassation has held that it is sufficient to show that sympathetic media outlets
broadcast the PKK’s “appeals”—speeches by the PKK
leadership calling on the Kurdish population to protest or raise their voices
on various issues. Then the defendant, by joining the demonstration, is assumed
to have acted directly under PKK orders. Yet even at extremely local
demonstrations not announced in the media beforehand, protestors are routinely
charged with acting under the orders of the PKK. In some cases, courts have
held that the PKK’s “appeal” to participate in demonstrations
is a continuous generic one, and therefore a specific instance of appeal to the
population need not be proved.

This legal framework makes no distinction between
an armed PKK combatant and a civilian demonstrator. In fact, demonstrators may
be punished more harshly, because while combatants who turn themselves in may
receive partial amnesty under the “Effective Repentance” provision
in the Turkish Penal Code, there is no such provision to reduce the sentences
of peaceful demonstrators who have never taken up arms. As a result, peaceful
demonstrators with no clear PKK affiliation may be punished more harshly than
PKK members who have actually served as guerrilla fighters.

On July 22, 2010, after civil society groups campaigned
extensively against the prosecution of children under terrorism laws, the
Turkish parliament adopted several amendments to limit the applicability of
such laws to child demonstrators. Law no. 6008, published in the Official
Gazette on July 25, 2010, states that all children will henceforth stand
trial in juvenile courts, or adult courts acting as juvenile courts; child
demonstrators “who commit propaganda crimes” or resist dispersal by the police will not be charged with
“committing crimes on behalf of a terrorist organization” and hence
“membership in a terrorist organization” and children will not face
aggravated penalties, and may benefit from sentence postponements and similar
measures for public order offenses.

The amendments also reduce penalties for both children and
adults for forcibly resisting police dispersal and offering “armed
resistance,” including with stones, during demonstrations under the Law
on Demonstrations and Public Meetings.[1]
Yet the new law omits any provision to prevent children from being charged with
“making propaganda for a terrorist organization” (either under
Article 7/2 of the Anti-Terror Law or Article 220/8 of the Turkish Penal Code).

After the law entered
into force, courts in Adana, Diyarbakir, and Van, among other places,
immediately released children who were serving prison sentences or being held
in pretrial detention on terrorism-related charges. In the coming months the
Court of Cassation is expected to overturn all convictions of child
demonstrators meted out by the adult Special Heavy Penal Courts. The Special
Heavy Penal Court will issue decisions of non-jurisdiction for the cases
against children and transfer the cases to the juvenile courts. Retrials will
take place in juvenile courts and, according to the new law, in most cases
where children were convicted of “committing a crime on behalf of an
organization” (Article 220/6, Turkish Penal Code) and “membership
in an armed organization,” (Article 314/2, Turkish Penal Code) the
juvenile courts must drop these charges. Most children convicted of other
offenses (such as “propaganda for a terrorist organization”,
Article 7/2, Anti-Terror Law) are likely to benefit from sentence
postponements. Since this report was finalized during the judicial recess
when no retrials had yet begun, from Fall 2010 it will be important to monitor
how the law is applied to new and ongoing cases, as well as to cases in which
there is already a confirmed sentence.

Since its foundation, the Republic of
Turkey has pursued variously assimilationist and repressive policies towards minority
groups, especially one of the largest ones, the Kurds. Today, Turkey is home to
an estimated 12 to 20 million Kurds, though there is no official tally because
the government does not recognize the Kurds as a distinct group and population
censuses have not collected information about ethnicity for many years. The
problems of Kurds today have been compounded by decades of poverty,
discrimination, and underdevelopment, and 25 years of displacement and armed
conflict. While in the past, Kurdish language and cultural expressions were
strictly prohibited, those restrictions have eased. Yet laws and regulations
still curtail Kurdish-language education in schools and the use of languages
other than Turkish in public life, and restrict the rights to political
representation and participation.

In 2009, President Abdullah Gül and
the Justice and Development Party (AKP) government emphasized the pressing need
to solve the Kurdish problem and committed to taking concrete steps to a
resolution. In May 2009, President Gül commented: “Call it
terrorism, call it the southeast, call it the Kurdish problem: this is
Turkey’s number one problem. It must be solved … we must not miss
this opportunity.” On July 29, 2009, Interior Minister Beşir Atalay indicated that a solution would be achieved “by
broadening and strengthening our citizens’ democratic rights and ensuring
that each of our citizens, wherever they live, feel themselves to be equal and
free individuals of the state.” The government named the project
“the democratic opening,” though it is also known in the press as
the “Kurdish opening.” The government signaled the formal start of
the process when it presented a plan to parliament on November 13, 2009. Among
other reforms, Minister Atalay said the government would set up a commission to
combat discrimination and end obstacles to all-day broadcasting by private television
channels in languages other than Turkish. The latter step was achieved
with a regulation introduced on the same day as Minister Atalay’s
announcement.

The first blow to the
government’s plan came in December 2009, when the Constitutional Court
banned the pro-Kurdish Democratic Society Party (DTP), accusing it of
separatist activity.

Then in May 2010, PKK escalated its deadly attacks on
military and police targets, continuing through the summer. (In mid-August
2010, the organization declared an end to such attacks during the month of
Ramazan.)

Over the following months there were no developments
indicating that the government was pursuing an “opening” and there
were also further serious setbacks to the process. In June 2010, 151 officials
of the now-banned DTP and its successor, the Peace and Democracy Party (BDP),
were indicted for membership in an alleged “Turkey Assembly” of the
Union of Kurdistan Communities (KCK), a body connected with the PKK. Those due
to stand trial in October 2010 include eight serving and four former elected
mayors of municipalities in the southeast; at the time of writing this report,
seven of the serving mayors had been held in pretrial detention for eight
months. Prior to being formally indicted, 53 of the other Kurdish party
officials, lawyers and activists among the 151 people facing trial had been
held for over a year in pretrial detention for alleged KCK/PKK connections
following a clampdown on legal Kurdish political activity beginning in April
2009 right before the government announced its “democratic
opening.”

Also in June 2010, eight PKK members based in PKK camps in
northern Iraq and 22 civilians from the Mahmur camp in Iraq run by the Office
of the United Nations High Commissioner for Refugees (UNHCR), who had returned
to Turkey apparently in response to the government’s “democratic
opening,” were put on trial for “membership in the PKK,”
“making propaganda for the PKK,” and “committing crimes on
behalf of the PKK.”

Despite the adverse climate that had developed by June2010,
Prime Minister Erdoğan repeatedly restated his commitment to
pursue the “democratic opening.”[2]
In 2009, the government did lift restrictions on broadcasting in Kurdish, and
in July 2010, it ended the prosecution of all children in adult courts and
adopted amendments to limit the application of the most serious terrorism laws
to child demonstrators. However, by August 2010, the government had taken no
other concrete steps to implement its plan. If the government is truly
committed to bringing about a “democratic opening,” one important
measure will be to put an end to the arbitrary use of terrorism laws against
demonstrators.

In this report, Human Rights Watch examines the use of
terrorism laws to prosecute adults who protested peacefully, or who threw
stones, burned tires and committed other minor acts of violence. While people
who commit such offenses may legitimately be prosecuted and sanctioned, there
is no evidence that the vast majority of these defendants committed any act
that would typically or reasonably be considered “terrorism.” The
“terrorism” charges brought against these protestors are extremely
vague and imprecise and do not correspond to the nature or gravity of the acts
committed. As such, they fail the test of legality, and their application amounts
to an arbitrary use of criminal law, and a violation of human rights and the
rule of law.

Furthermore, it is contrary to the requirements of a fair
trial under international law for a state to impute motives to individuals and
then prosecute them solely for these assumed motives—in this case, for
the Turkish government to assume that demonstrators are acting under orders of
the PKK - without showing any evidence of this. It is a violation of the right
to freedom of assembly for the government to infer that demonstrators have
criminal intent solely because they participated in a peaceful protest. The
reality is that in many of these cases, the demonstrators are doing nothing
more than exercising their right to freely express their views, a
right that is protected under international law as one of the foundations
of a democratic society.

Key Recommendations

Human Rights Watch calls on the Turkish government, as a
matter of urgent priority and as part of its stated commitment to uphold the
human rights of Kurdish citizens of Turkey, to amend the laws that have
resulted in the punitive application of terrorism charges against
demonstrators, notably by repealing Articles 220/6 and 220/7 of the Turkish
Penal Code (“committing a crime on behalf of an organization without being
a member of that organization,” and “knowingly and willing aiding
and abetting an organization”), which are punishable under Articles 314/2
and 314/3 of the Turkish Penal Code (“membership in an armed
organization”), and Article 2/2 of the Anti-Terror Law,
which includes a similar provision: “A person who is not a member of a
terrorist organization but, commits a crime on behalf of the organization, is
also deemed to be a terrorist offender and is punished as a member of the
organization.”

Methodology

This report is based on the examination of
50 cases of the prosecution of adult and child demonstrators in the
Diyarbakır and Adana courts. We have focused on these two provinces
because most of the recent prosecutions of demonstrators occurred in these
regions.

Terrorism offenses and organized crime fall
under the jurisdiction of Heavy Penal Courts, which are authorized under Article
250 of the Criminal Procedure Code (henceforth “Special Heavy Penal
Courts,” except where referring to a specific court, such as Diyarbakır
Heavy Penal Court No. 4). Crimes committed in Diyarbakır and in the
surrounding provinces of Urfa, Mardin, Batman, Şırnak, Siirt, and Bingöl are dealt with by the Diyarbakır Heavy
Penal Courts. The cases in this report before the Special Heavy Penal Courts in
Adana mainly concern crimes committed in the city of Adana, though the courts
also have a remit over crimes committed in surrounding provinces, such as
Mersin, İçel,
Gaziantep, and Hatay.

This report examines 18 cases against 26
individuals in greater detail to demonstrate the current practice of the courts
and reveal problems in their application of the laws.

The report does not deal in any detail with
the much broader matter of comprehensively extending the limited juvenile
justice system in Turkey. In July 2010, the Turkish government amended laws to
end the practice of prosecuting children under the age of 18 in Special Heavy
Penal Courts and to ensure that in future, all children will stand trial in
juvenile courts. The amendments also stopped prosecutors from applying the most
serious terrorism laws to child demonstrators. While these are very welcome
steps, further reforms to terrorism laws are needed to remedy the injustices
described in this report.

The research was carried out between
January 2009 and March 2010. Interviews with children released from prison
pending trial were carried out in Adana in May and June 2009. All interviews
were conducted in Turkish.

In this report “child” and
“children” are used to refer to anyone under the age of 18,
consistent with usage in international law. The names of all children are
abbreviated to their initials to protect their privacy. This follows the
practice of NGOs and children’s rights groups in Turkey. All adults are
referred to by their full names and not by pseudonyms.

The cases in this report are up-to-date as
of July 2010.

II. Background

Conflict and Kurdish Rights in
Southeast Turkey

For the past 25 years, the Turkish military
and the Kurdistan Workers’ Party (PKK) have been locked in conflict in
the southeast and eastern provinces of the country. The fighting has killed an
estimated 44,000 people: soldiers, PKK members, and civilians.[3] During the 1990s, human rights groups documented gross violations
of human rights by both the Turkish security forces and the PKK. There were
thousands of enforced disappearances and unresolved killings suspected to have
been carried out by state perpetrators. A state policy of burning down
villages, ostensibly to prevent them from being used as PKK bases, led to the
displacement of 950,000 to 1.2 million people.[4] State agents conducted torture on a mass scale, and both state
forces and the PKK attacked civilians.[5]

For many
years, much of the southeast and eastern regions were governed by emergency
laws, which severely curtailed the rights to assembly, association, and expression.
Fighting lessened after the 1999 capture of PKK leader Abdullah Öcalan and
the PKK’s announcement of a ceasefire. Yet violence escalated again at
various times from 2004 to mid-2010, typically taking the form of armed clashes
between the military and the PKK in remote mountainous regions away from
population centers. The PKK, or groups affiliated with it, have occasionally
launched attacks on civilian targets in cities and holiday resorts. Most
recently, since May 2010, the PKK has carried out a series of deadly attacks on
military and police targets.

Over the last decade, the Justice and
Development Party government (which has served two terms between November 2002 and
the present), and the coalition government that preceded it, undertook important
reforms to advance fundamental rights and freedoms. However, the conflict has
had a profound impact on the way legislation has been drafted in this era, and
has also influenced the way courts have interpreted laws. The lawmakers who
amended the Penal Code and Anti-Terror Law, and the courts, most notably the
Court of Cassation, have focused primarily on measures to enhance security,
often at the expense of human rights.[6]
The pattern of prosecutions and convictions addressed in this report is a
direct legacy of the conflict: vague and overly broad laws, and harsh,
potentially discriminatory, implementation of those laws by Turkey’s
Court of Cassation.

While the previous AKP government (November
2002-July 2007) introduced many legal reforms, countless laws continue to
affect Kurds and other minority groups disproportionately, restricting their
right to use their mother tongue in public life, to organize politically on the
basis of their ethnic or religious identities, and to enjoy other cultural
rights.[7] Until recently, Turkish government and state officials viewed the
Kurdish question solely as about the PKK, a problem of security and territorial
integrity. They did not focus on or attempt to address the roots of the
problem. The history of minority rights in Turkey and of Kurdish rights in
particular has been extensively surveyed elsewhere, and the following section
gives only a brief overview.

Minority Rights in Turkey

Turkey is a heterogeneous country, made up
of religious and ethnic minority groups including Kurds, Laz, Çerkes, Roma, Alevi, Syriacs, Arabs,
Greeks, Armenians, Jews and others, alongside the Turkish majority. The Republic of Turkey has a well-documented history of variously
assimilationist and repressive policies toward minority ethnic and religious
groups.[8]
The government has denied minority groups a full spectrum of rights, including
cultural recognition, linguistic rights, and political inclusion on the basis
of ethnic or religious identity, except for three groups (Greeks, Armenians, and
Jews) recognized as minorities by the 1923 Treaty of Lausanne. Throughout the
87-year history of the republic, the state has refused to officially recognize
any other group as a minority.[9]
The numerically largest groups to be denied recognition were Kurds and
heterodox Muslim Alevis.

Throughout the history of the Republic of
Turkey, Turkish citizenship and identity has been equated with membership in the
Turkish and Sunni Muslim majority, and citizens have been expected to bury
other ethnic or religious affiliations and associations.[10]
The education system in Turkey has emphasized a single Turkish identity for all
citizens and omitted any mention of minority groups other than those originally
recognized in 1923. People who have called for the recognition of minority
rights have often faced criminal prosecution for offenses against the integrity
of the state, and their written expression has been censored. Even today, people
are prosecuted for non-violently expressing opinions on the Kurdish issue, discussing
Kurdish history, and criticizing the state policy on minority rights and more
generally discussing the recent history of minority groups.

Under the influence of the Turkish left and
the Iraqi Kurdish national movement, Kurdish nationalism in Turkey began to
develop in the late 1960s, and became highly visible in the 1970s with a burgeoning
number of cultural and political groupings. Following the September 12, 1980
military coup, all Kurdish nationalist cultural and political groupings were
banned, along with leftist and rightist groups. This left the field open to the
Kurdistan Workers’ Party (PKK) – an underground group with a Marxist-Leninist
orientation at that time – that launched an armed struggle against the
Turkish state in 1984. From that time onwards, the Turkish military has fought the
PKK, which throughout the 1980s and ‘90s sought to build a separate
Kurdish state. The PKK no longer advocates a separate state. Now the
group, still armed, fights for cultural and political rights for Kurds in
Turkey.[11]

In Turkey’s recent history,
restrictive state policies resulted in a harsh clampdown on the civil,
political, economic, social, and cultural rights of the civilian population in
the southeast. At the height of the conflict with the PKK, this translated
into serious violations of human rights and humanitarian law. Countless
judgments by the European Court of Human Rights found Turkey responsible for extrajudicial
executions, enforced disappearances, torture, and the destruction of property
in the southeast provinces.[12]

The failure to resolve the Kurdish question
has been one of the main obstacles to fostering a political order in Turkey
that exhibits and adheres to the hallmarks of democracy, rule of law, and
respect for human rights propounded by human rights instruments such as the
European Convention on Human Rights. The European Commission has repeatedly
commented in its regular reports on the need for Turkey to sign international
conventions on the protection of minority rights, as well as to amend its
national laws. For years, successive Turkish governments have missed many
opportunities to tackle these issues.

The AKP Government’s “Democratic
Opening” and Minority Rights

In 2009, the Turkish government indicated that it was
committed to addressing the failures of the past. Prime Minister Recep Tayyip
Erdoğan
and President Abdullah Gül emphasized the pressing need to solve the
Kurdish problem and committed themselves to taking concrete steps to do so. In
May 2009, President Gül commented: “Call it terrorism, call it the
southeast, call it the Kurdish problem: this is Turkey’s number one
problem. It must be solved … we must not miss this opportunity.”[13]
On July 29, 2009, Interior Minister Beşir Atalay announced
that the government had begun to work on a plan to solve an issue that
“we all know is vital for Turkey’s future,” emphasizing the
need for “broadening and strengthening our citizens’ democratic
rights and ensuring that each of our citizens, wherever he or she lives, feel
themselves to be equal and free individuals of the state.” Atalay
promised a wide-ranging consultation process to solve what he described as
“not only our party’s or our government’s problem, but a
problem of the whole society.”[14]
The government named the project “the democratic opening,” though
it also became known in the press as the “Kurdish opening.”

On November 13, 2009, the government brought the Kurdish issue
to the parliament for discussion. Minister Atalay promised
various reforms, such as establishing a commission to combat discrimination, lifting
obstacles to all-day broadcasting by private channels in languages other than
Turkish, and creating a new constitution.[15] Prime Minister
Erdoğan
described the process as a “new beginning for Turkey.”

The first sign of a backlash against the initiative came in
December 2009, when the Constitutional Court banned the pro-Kurdish Democratic
Society Party (DTP) on grounds that it promoted separatism.[16]
Over the following months there were no developments indicating that the
government was pursuing an “opening” and there were also some
serious setbacks to the process.

In May 2010, the PKK escalated its deadly attacks on
military and police targets, in a campaign that continued through the summer.
(In mid-August 2010, the organization declared an end to such attacks during
the month of Ramazan.)

In June 2010, the authorities clamped down on legal
Kurdish political activity, and the Diyarbakir prosecutor’s office
indicted a large group of politically active Kurds after a long investigation.[17]
For more than a year, officials and activists in the DTP and its successor, the
Peace and Democracy Party (BDP), and lawyers perceived to be close to the parties,
had been held in pretrial detention. In June, 151 people—including eight
democratically elected serving mayors and four former mayors of municipalities
in the southeast—were indicted for membership in an alleged “Turkey
Assembly” of the Union of Kurdistan Communities (KCK), a body connected
with the PKK. They are to stand trial in October 2010.[18]
Seven of the serving mayors remain in pretrial detention at the writing of this
report. The Diyarbakir prosecutor’s move to demonstrate links between the
DTP and its successor the BDP, with 20 members of parliament, and the armed
PKK, clearly threatens current prospects of solving the Kurdish problem by
democratic means.

Also in June 2010, eight PKK members based in PKK camps in
northern Iraq and 22 civilians from the Iraqi Mahmur camp run by the Office of
the United Nations High Commissioner for Refugees (UNHCR), who had returned to
Turkey apparently in response to the government’s “democratic
opening,” were put on trial for “membership in the PKK,”
“making propaganda for the PKK,” and “committing crimes on
behalf of the PKK.”

Despite the adverse climate that had developed, Prime
Minister Erdoğan repeatedly restated his commitment to resolving
the Kurdish question.[19]
In 2009, the government had lifted restrictions on broadcasting in Kurdish, and
in July 2010, the government ended the prosecution of children in adult courts
and limited the application of the most serious terrorism laws to child
demonstrators. Yet by August 2010, more than a year after the interior minister
had first promised a “democratic opening,” the government had taken
no other concrete steps to implement its plan.

If the government is serious about reform, among many other
concrete steps needed, it must end the arbitrary use of terrorism laws against
demonstrators, as permitted by a combination of the Turkish Penal Code, the
Anti-Terror Law, and recent case law.

III. A Culture of Political
Protest

The past few years have seen increasing
numbers of protests by Kurds frustrated with government policies towards their
culture, status, and rights, and towards Abdullah Öcalan, the imprisoned
leader of the armed Kurdistan Workers’ Party (PKK). For example, on July
14, 2008, and from October 18 to 21, 2008, protests were held in various cities
in Turkey against the alleged ill-treatment of Öcalan and his prison
conditions.[20]
Civic, cultural and political occasions regularly spur demonstrations in
Kurdish neighbourhoods, villages and towns. Protests are held every year to
mark the anniversary of Öcalan’s capture by Turkish authorities on
February 15, 1999 in Kenya and his transfer to prison in Turkey.[21]
The festival of Newroz/Nevruz, the Kurdish New Year, on March 21, elicits demonstrations
as well as cultural celebrations.[22]
Protests took place prior to Turkey’s March 29, 2009 municipal elections.
Spontaneous local protests also take place fairly frequently in cities
throughout southeast Turkey and in mainly Kurdish-populated districts of cities
such as Adana. Protests typically involve groups of youths and children,
who shout pro-Öcalan and PKK slogans, burn tires in the street, and
respond to police orders to disperse by throwing stones.

The majority of protestors, however, are in
fact over 18, and are ordinary citizens making their living as storeowners,
tradesmen or laborers. Others include students, mothers running homes, or
may be unemployed. Interviews conducted with demonstrators by Human Rights
Watch in Adana revealed that all interviewed were from families that had been
forcibly displaced from villages in southeast Turkey in the early 1990s, had
lost their farming-based livelihoods, and had been compelled to start anew with
few possibilities for employment. In Diyarbakır and
the other cities of the southeast, many demonstrators also share this
background.

As the tendency to
protest Kurdish issues has increased in recent years, so has the Turkish
government’s drive to prosecute protestors. In the past five years, lawmakers revised the
Turkish Penal Code and the Anti-Terror Law to more broadly cover protest.
Judicial precedents have established an even broader basis for the prosecution
of protestors. Now, Kurdish demonstrators routinely face prosecution and long
prison terms. Kurdish party officials and others who make speeches on the
Kurdish question or some journalists writing on it and in particular expressing
opinions that are ideologically similar, or perceived to be similar, to
opinions of the PKK, may also face prosecution under the same combination of
laws. Although the statistical
picture is incomplete, research by Human Rights Watch indicates that many hundreds of individuals are
currently being prosecuted under harsh anti-terror laws merely for
participating in demonstrations on Kurdish issues or for speeches and writings.

Our focus in this report is on
demonstrators rather than on the individuals prosecuted for speeches and
writings. A clear pattern has emerged: Police arrest demonstrators on the
grounds that they have taken part in unauthorized demonstrations, accusing them
of shouting pro-PKK slogans, waving pro-PKK banners, and resisting police
dispersal by throwing stones. Police and prosecutors also identify statements
from the websites and satellite TV broadcasts of news outlets sympathetic to
the PKK to demonstrate that the PKK has issued “appeals” to the
people to participate in demonstrations centered on particular themes on
particular days. The demonstrators are then charged and sentenced as though they
are armed members of the PKK. Up until now, a significant proportion of the
demonstrators treated in this manner have been children, typically aged 15 to
17, but some as young as 12. Legal amendments passed in July 2010 improved
their situation, mandating that they be tried in juvenile courts only, and
exempting them from prosecution as armed militants for most offenses. Human
rights groups will closely monitor the implementation of the new law in the
coming months.

Violations of and limitations on freedom of
expression in Turkey have been well-documented.[23] Yet in the past, most of those who faced prosecution for making critical
statements on the Kurdish question, on minority rights, and on Turkish state
policies, have been more or less prominent individuals—mayors and other
political officials, writers, publishers, journalists, and other public figures—or
publishing houses and media outlets. In contrast, this report focuses on ordinary
citizens who join demonstrations and face prosecution for shouting slogans or
holding up banners, and for exercising their right to assembly; their cases
rarely garner public attention or press coverage. And while civil society groups
in Turkey have campaigned against the prosecution of child demonstrators, there
has been much less attention paid to adult demonstrators and the legal changes
that in the past several years have fostered a disturbing new pattern of
convictions.

Law
enforcement officials, public prosecutors, and courts claim that these
demonstrations are organized by the PKK and its representatives as part of a
wider policy to promote civil disobedience and even uprising among Kurds.
Police officers interviewed by Human Rights Watch stated that recently more
children were participating in demonstrations, and expressed their belief that
these children—as well as adults—were being organized by
representatives of the PKK, down to details such as where they stand in the
demonstrations.[24]Similarly, in a 2009 statement to the Committee on
the Rights of the Child, the Turkish government wrote that the PKK and groups
linked to it have stressed “the necessity of spreading violence, mass
riots and protests to cities and urban areas by using particularly women and
children” and have exploited the youth “either by force or by money
or through false promises in order to create mass violence.”[25]Yet most of the demonstrators facing prosecution
are over 18 years old, and Human Rights Watch has seen police reports that
regularly blame adult demonstrators for directing resistance to the police.

Public
prosecutors seem to share this view of Kurdish protestors’ motivations
for demonstrating. Indeed, most indictments state that the demonstrations are
part of a PKK policy of protest. The indictments detail the formalization of
the PKK policy in a series of decrees the organization issued at various
congresses, and state that senior representatives of the PKK use sympathetic
media channels to issue their calls to Kurdish supporters to take to the
streets in protest. Individual indictments thus include an abstract overview of
elements of the history of the PKK and its policies, followed by a statement of
the alleged specific criminal activities of the defendant. Typically,
prosecutors submit no evidence that would establish that the individual
defendant either heard the PKK’s “appeal” or was directly
instructed or motivated to participate in the demonstration by the PKK, much
less evidence that the defendant had any specific link to the PKK or committed
a crime under its orders.

The Turkish courts do not view the prosecution’s
failure to provide evidence of the defendant’s specific intent to support
or aid the illegal activities of the PKK as any obstacle to conviction. The
General Penal Board of the Court of Cassation has held that it is sufficient to
show that sympathetic media outlets broadcast PKK “appeals,” speeches
by the PKK leadership to the Kurdish people. Then the court assumes that any
demonstrator went out to protest in direct response to the PKK’s
“appeals,” under PKK orders—whether or not that particular
demonstrator ever heard them. Even in cases involving extremely local demonstrations
that no media outlet announces beforehand, protestors are routinely charged
with acting under the orders of the PKK. Courts in Adana, for example, have
justified convicting child defendants of “committing a crime on behalf of
the PKK” by claiming that the PKK’s “appeal” to
participate in demonstrations is a continuous one, and therefore does not
require a specific address about a particular occasion.

This legal framework makes no distinction between
an armed PKK fighter and a civilian demonstrator. In fact, a loophole can lead
to harsher punishments for demonstrators than for fighters: the “Effective
Repentance” law (Article 221, Turkish Penal Code) provides for a partial
amnesty for onetime fighters who turn themselves in, but there is no such
provision for peaceful demonstrators who have never taken up arms. As a result,
such demonstrators can be sentenced to prison terms for membership in a
terrorist organization without the possibility of a reduced sentence or dropped
charges available to others who have actually taken up arms on behalf of the
PKK. These serious charges, added to charges under the Law on
Demonstrations and Public Assemblies, could result in prison sentences for
protestors of 28 years or even higher. To date, the majority of adults prosecuted
under these laws have received prison terms of between seven and 15 years,
since courts dealing with these cases have generally not opted to apply
sentences at the upper end of the sentence range. Child protestors have
typically received prison sentences of between four and five years, though in
2010, at least several children were sentenced to seven-and-a-half-year prison
terms.

The laws are discussed in full in the next
chapter, followed by a discussion of the case law.

IV. Terrorism laws and Demonstrators

In 2004, when the Justice and Development
Party (AKP) government began to revise the Turkish Penal Code, many observers
hoped for broad legal change as part of Turkey’s bid for full European
Union membership and more importantly to benefit all citizens of Turkey.
Yet in 2005, when the new Penal Code was passed into law, it contained
important improvements in some areas (for example, in the provisions relating
to the prosecution of violence against women, and the definition of the crime
of torture and its prosecution). Yet in other areas, the new code fell short of
expectations: restrictions on freedom of expression remained, and crimes deemed
terrorist offenses were vaguely worded and lacked the clarity required in
criminal law. Then in 2006, lawmakers passed amendments to the Anti-Terror Law
that broadened its applicability, with particularly serious consequences for
juveniles. And in 2008, the highest chamber of Turkey’s court of appeal
(the Court of Cassation) issued a precedent ruling which pointed the way to the
harsh and arbitrary application of vaguely worded provisions in the 2005 Penal
Code to those involved in demonstrations.

Below, we review the application of two
articles of the new Penal Code (Articles 220 and 314) to demonstrators on
Kurdish issues, and also consider the impact of the new Anti-Terror Law of 2006
and the case law that since 2008 has allowed demonstrators to be sentenced to
long prison terms as “terrorists” for activities such as shouting
slogans, making victory signs, holding up banners, and throwing stones. We also
review July 2010 amendments to the Anti-Terror Law that have ameliorated the
situation of child demonstrators, but have not improved the prospects of
adults, or addressed the problems in the Penal Code.

Terrorism Offenses in the 2005
Turkish Penal Code and the 2006 Revisions to the Anti-Terror Law

Domestic and international nongovernmental
organizations have frequently criticized Turkey’s laws on terrorism
offenses. Courts have too often deemed nonviolent expression to be terrorist
propaganda or to constitute aiding and abetting a terrorist organization.
Courts have deemed individuals to be “members” of armed
organizations on notoriously vague grounds. It was therefore particularly
regrettable to discover that the legal reforms introduced with the 2004
revision of the Turkish Penal Code, which went into effect on June 1, 2005, did
not sufficiently remedy the situation. Our focus here is the laws that have established
a basis for the problematic prosecution of demonstrators and for the high
criminal sentences available and imposed in such cases. Defendants are also
charged under previously existing laws, such as being in violation of the Law on Demonstrations and Public Meetings (Law
no. 2911), which outlines more standard offenses related to demonstrations,
such as “resistance to police dispersal,” and the grounds on which
demonstrations can be restricted and therefore deemed unauthorized.

The 2005 Penal Code introduced Article 220,
entitled, “Forming Organized Groups with the Intention of Committing Crime”
(See translation, appendix 1). This article has been most commonly used to
punish criminal gangs, as a separate article, discussed below, criminalizes
membership in armed political organizations. However, courts have also applied
Article 220 to those deemed to be associated with armed political
organizations.

This article also introduced a provision
allowing individuals to be treated as if they are members of an armed organization
even if they are not. Paragraph 6 of Article 220 states:

A person who commits a crime on behalf of
the organization although he or she is not a member of the organization
[emphasis added] shall also be punished as though a member of the organization.

Thus, individuals who “commit crimes on
behalf of” armed organizations such as the PKK can be prosecuted as if
they were fighters, and sentenced accordingly.

Similarly, Article 220/7 states:

A person who aids and abets the
organization knowingly and willingly, although he or she does not belong to the
hierarchical structure of the organization, shall be punished as though a
member of the organization.

While Article 220/7 has not recently been
applied to pro-Kurdish demonstrators, it has in some cases been applied to
leftist demonstrators who have been punished as “members” of armed
organizations for “knowingly and willingly aiding” them without providing
any material assistance.[26]
This undefined and vague charge currently in use against leftist demonstrators
deserves a separate study.

Article 220/6-7 of the Penal Code connects
with Article 2/2 of the Anti-Terror Law, which includes a similar provision:

A person who is not a member of a
terrorist organization, but commits a crime on behalf of the organization, is
also deemed to be a terrorist offender and is punished as a member of the
organization.[27]

Finally article 220/8 penalizes
“propaganda,” and its use frequently constitutes a restriction on
free expression:

A person who
makes propaganda for the organization or its objectives shall be punished to
imprisonment of one to three years. If the crime is committed through media and
press, the sentence will be increased by half.

When a defendant is convicted of committing
a crime on behalf of an armed political organization, Article 314 of the Penal
Code provides the punishment, stipulating substantially higher penalties than
if the person were prosecuted for a crime committed on behalf of an organized
criminal gang.

Article 314/2 applies to any person who
establishes or becomes a member of an armed political organization (see
translation, appendix 1). Article 314/3 states vaguely:

Other provisions relating to the offense
of forming an organized group for the purpose of committing crimes are treated
[punished] in the same way as for this offense.

This paragraph, and Anti-Terror Law Article
2/2 (above) provide the legal basis for linking the offenses proscribed by Article
220 (e.g., 220/6, participation in political demonstrations) with the harsh
punishments provided for in Article 314.

The
charge of “membership in an armed political organization” under
Article 314/2 of the Penal Code carries a five-to-10-year prison sentence. Then
the Anti-Terror Law bears on the case, and its Article 5 provides that the
sentence automatically increases by one-half, because the crime is also a
terrorism offense. Any crime committed “on behalf of” the PKK falls
under Article 5 of the Anti-Terror Law because the PKK is a terrorist
organization under Turkish law.

To date, adult demonstrators convicted
under Articles 220 and 314 have typically been sentenced to between seven and
15 years in prison after discretionary reductions are applied.[28] In addition to the charge of “membership in an armed
organization” for “committing a crime on behalf of an
organization,” the defendant also faces other charges for being in
violation of the Law on Demonstrations and Public Meetings.[29]
The combination of charges, in theory, means that a defendant could face 28
years’ imprisonment or more, and an even higher sentence if there are
multiple violations, and the court were to opt to sentence at the upper end of
the range.[30]

In July 2006, the Turkish parliament passed a series of
amendments to the 1991 Anti-Terror Law. Of relevance here is the
amendment to Article 7/2 concerning the crime of “making propaganda for a
terrorist organization,” so it could be applied more directly to
demonstrators and others committing an offense by means of a speech, in writing
or over a broadcast (see Appendix 1 for a full translation of article 7). This
provision is widely used in Turkey today to restrict nonviolent expression on
the Kurdish issue, as well as to prosecute nonviolent expression by individuals
associated with legal leftist organizations that share ideological ground with
illegal armed leftist groups. The widespread use of Article 7/2 to restrict leftist
nonviolent expression merits a separate study, but the cases included in this
report demonstrate that this charge of “making propaganda” is now invariably
used against Kurdish demonstrators, along with the more serious charge of
“committing a crime on behalf of the PKK.”[31]

Revisions to the Anti-Terror Law in 2006
had particularly serious implications for children. Under the 2006 amendments,
children between 15 and 17 years of age charged with a terrorist offense forfeited
the right to be tried in juvenile courts (Article 9, Anti-Terror Law).
Instead, they were now to be tried in Special Heavy Penal Courts established
under Article 250 of the Criminal Procedure Code, which have a special remit to
deal with terrorism and organized crime cases.[32]

The Case Law on Articles 220/6 and
314/2-3: The Felat Özer Case

The provisions discussed above build a
complicated and interlinked set of legal norms applicable to demonstrators, and
potentially also to anyone else deemed to have committed a crime “on
behalf of” an illegal organization. They do not, however, explain how
participation in a demonstration, without any further action, can be sufficient
to warrant the charge of committing a crime on behalf of the PKK, and, by
extension, of membership in the PKK. To understand how Turkish courts today are
able to apply these laws to demonstrators, it is necessary to review the
reasoning of the General Criminal Board of the Court of Cassation in a 2008
precedent-setting decision.[33] In the Felat Özer case, the Court of Cassation held that by
the sole fact of joining protests, demonstrators were committing crimes
“on behalf of the PKK.” The court reasoned that because the PKK
regularly issues “appeals” through sympathetic media outlets to the
Kurdish people to join protests, any demonstrator attending a protest must be acting
under PKK orders. This ruling led other courts to apply the vaguely worded laws
discussed above to demonstrators.

The Özer case involved a demonstrator
who was convicted of violent activities during mass protests that took place in
the city of Diyarbakır on March 28 to 31, 2006, as well as for his conduct
during two other demonstrations which he participated in at around the same
time. The March 2006 protests merit a brief account here because they prompted
the legal changes that have resulted in the prosecution of and severe penalties
for demonstrators that are the subject of this report. Following the March 2006
demonstrations, the government also quickly introduced revisions to the
Anti-Terror Law.

Background to the Özer Case:
The Diyarbakir Protests of March 28 to 30, 2006

On March 24, 2006, the military killed 14
members of the PKK in the Şenyayla region, a rural area between Diyarbakır, Bingöl,
and Muş. The PKK subsequently
made unsubstantiated claims that the group had been attacked by some form of
chemical weaponry, leaving their bodies burnt and unrecognizable. After
autopsies in Malatya, the bodies of four of the militants were released to
their families in Diyarbakir, amid public outrage about the alleged use of
chemical weaponry. On March 28, a funeral ceremony for the four took place in
Diyarbakır. A satellite news channel sympathetic to the PKK had reportedly
encouraged popular participation in the funeral.[34]
At any rate, the crowd assembled for the funeral grew large, and after the
funeral prayers, clashes erupted between demonstrators and the police, and
spread to different neighbourhoods. The protests assumed a scale not previously
encountered in many years, and went on for days. In the course of the
demonstrations, 10 individuals were killed, eight of them by bullets suspected
to have been fired by the security forces. Local human rights groups and the
Diyarbakır Bar Association believe that the use of excessive force to
police the demonstrations exacerbated tensions and caused the demonstrations to
continue longer.[35]

Hundreds of demonstrators and members of
the security forces were reportedly injured during the protests. Hundreds of
people—many of them children—were detained. Many of the detainees,
including many children, reported ill-treatment in police custody. These claims
were documented at the time by local human rights NGOs, the Diyarbakır Bar
Association, and Amnesty International.[36] To
date, not a single allegation of ill-treatment or use of excessive force by
police has resulted in a disciplinary sanction against a police officer, far
less any criminal prosecution. In all but one case, the separate investigations
into the fatal shootings have still not been concluded after more than four
years.[37]

After the demonstrations, hundreds of
adults and children were tried for terrorism offenses, as well as fordamaging
public property, for various violations of the Law on Demonstrations and Public
Assemblies (resisting dispersal, joining unauthorized demonstrations, etc.),
and also for looting. The courts generally convicted the demonstrators of an
offense under Article 7/2 of the Anti-Terror Law (“making
propaganda for a terrorist organization”), violating the Law on
Demonstrations and Public Assemblies, and, where there was enough evidence,
“damaging public property” (Articles 151-52, Turkish Penal Code).

The General Criminal Board of the
Court of Cassation Decision in the Özer Case

In March 2006, as Diyarbakır erupted
in protest, Felat Özer was working there as a barber. Özer was
accused of involvement in violent acts at the March 28 protest and two other
demonstrations around that time. The main evidence cited against Özer in
the reasoned verdict of the court consisted of video footage of him at
various demonstrations: Özer carrying an empty coffin and shouting slogans
at the funeral of a PKK member on February 26, 2006; Özer at the front of
a group of protestors at a Newroz demonstration, gesticulating to the others with
his hands, which the court determined amounted to directing the resistance to
the police; and Özer shouting slogans among a group of people burning
tires during the March 28 Diyarbakır protests, and partly covering his
face with a red scarf to conceal his identity. There was apparently no video
evidence of Özer actually throwing stones or resorting to violence
himself, only a photograph of him with a stone in his hand, and evidence that
he had been among a group that violently resisted the police. On the basis of
this evidence, on September 29, 2006, Diyarbakır Heavy Penal Court No. 4
convicted Özer of resisting dispersal by the police in violation of the
Law on Public Meetings and Demonstrations, and of making propaganda for the PKK
(Article 7/2, Anti-Terror Law).

Özer’s lawyer and the prosecutor
both lodged an appeal against the sentence with the Ninth Penal Chamber of the
Court of Cassation.[38]

In a February 21, 2007 ruling, the Ninth
Chamber held that the Diyarbakır Heavy Penal Court should have tried and
convicted Özer under different articles of the Penal Code, and that
Özer had in fact committed a crime on behalf of the PKK and could have
been punished as a member of the armed organization (Articles 220/6 and
314/2-3, Turkish Penal Code). The Ninth Chamber reasoned that the PKK had
ordered all the demonstrations Özer had participated in, and that he was
therefore acting under the PKK’s orders.

The
Diyarbakır court retried Özer, but rejected the view of the Ninth
Chamber of the Court of Cassation that Özer should have been charged with
committing a crime on behalf of the PKK. Arguing that the defendant had not
aided the organization directly, on May 31, 2007, the Diyarbakir court returned
the same verdict as it had in September 2006 that Özer had violated the
Law on Demonstrations and Public Meetings and had made propaganda for the
PKK.

The Diyarbakır court had reasoned:

In our view, the issue aimed at in Article
220/6 of Turkish Penal Code No. 5237 is to ensure punishment of individuals
committing crimes on behalf of an organization as subcontractors of the
organization, and to punish both the crimes committed and the individual as a
member of an organization in whose name crimes have been committed. For
example, individuals have committed a crime on behalf of an organization if
they commit crimes such as bombings, murders and holdups, and moreover, it is
natural for them to be punished as members of the
organization.

In contrast with this, in cases where
people participate in the funerals of members of a terrorist organization or in
Nevruz celebrations, after the abstract and generalized appeal of that
organization, and in cases where shouting slogans constitutes propaganda for an
organization, it is not possible to say that crimes were committed on behalf
of the organization. In order for the court to say that a crime has been
committed on behalf of an organization, the organization must have appealed for
action not to an undefined collective, but rather to an individual capable of
directly carrying out an action.[39]

Because of the disagreement between the
local Diyarbakır court and the Ninth Penal Chamber of the Court of
Cassation, the case was referred to the General Penal Board of the Court of
Cassation. The decision of the board produced the definitive judgement on the
matter and established the case law that is binding on courts hearing
comparable cases.

The General Penal Board agreed with the
Ninth Chamber that individuals who join mass demonstrations for which there had
been an “appeal” to participate by an armed group are acting under
the orders of the armed group. The court reasoned that:

An organization’s
general “appeal” [for participation in a demonstration] is made
concrete through broadcasts from broadcasting organs belonging to the
organization, and there is no need for such appeals to be made to an identified
individual person. It is established that the actions carried out on behalf of
the organization are realized under the knowledge and at the wish of the
organization. An action by a defendant who joins these demonstrations carried
out on behalf of the organization constitutes a violation of Turkish Penal Code
Article 314/2 indicated by Articles 314/3 and 220/6.[40]

In determining that demonstrators were
responding to PKK orders to protest, the General Penal Board described at
length PKK policies to promote a campaign of civil unrest (in Kurdish, serhildan)
among the general Kurdish population. The board said that the PKK had organized
university students, parents of schoolchildren, and civil society groups to
petition for Kurdish-language education, and had also organized campaigns to
appeal for a general amnesty for PKK members, a ceasefire, and the release from
prison of Abdullah Öcalan.[41]
After the General Penal Board’s decision in the Özer case, many
subsequent indictments against those charged with “membership in an armed
organization” and “committing a crime on behalf of an organization,”
have referred to these PKK resolutions as though they prove that various
defendants have acted under PKK orders.

The Diyarbakır court had reasoned that
a person could not be convicted of “committing a crime on behalf of the
PKK,” unless the organization directly ordered that individual to act,
rather than issuing a generalized appeal to an “undefined
collective.” Yet the General Penal Board held the opposite, that a generalized
“appeal” was sufficient to prove the crime. Subsequent to the
General Penal Board’s ruling, indictments have typically included
statements from the PKK and its leadership aired on sympathetic news websites
and television channels as evidence of such “appeals,” without
attempting to prove a link between individual demonstrators and such
material, much less the PKK itself.

Ultimately, on December 16, 2008, the
Diyarbakır court convicted Felat Özer in a second retrial of
“committing a crime on behalf of the PKK,” and also of
“membership in an armed organization,” “making propaganda for
the PKK,” and three counts of violating the Law on Demonstrations and
Public Assemblies (Law no. 2911) for “using force or violence or threats
or attacks or resistance during the dispersal of a demonstration” (Article
32/c, Law no. 2911).[42]
Özer was sentenced to 14 years and seven months in prison. The Court of
Cassation upheld the sentence on all counts but one on November 11, 2009.[43]

The Diyarbakır Bar Association has criticized the use
of Article 220 of the Turkish Penal Code that has emerged since the Özer
precedent, noting “the extremely vague and wide definitions in the law
that have opened the way to such an interpretation” by the Court of
Cassation. The bar association concluded that the article violates
the principles of legality and legal certainty because it is too broad and
vague to meet requirements in criminal law for precision and clarity. Suggesting
that the article also violates the fair trial principle and the principle of
proportionality between crime and punishment, the bar association recommended
that Article 220 be amended, commenting:

It openly runs against the terms of a democratic society for
a person who has no direct connections with an organization to be prosecuted, and
potentially sentenced to more than 20 years in prison, solely because that
person joined a mass demonstration and shouted a slogan or threw a stone.[44]

A combination of vague language in the Penal Code (Article
220/6-7) and the Anti-Terror Law (Article 2/2) and the harsh ruling in
the Özer case has resulted in a new pattern of
prosecutions and convictions, which we show in Chapters 5 to 7
of this report.[45]

Legal Amendments in July 2010
Concerning Child Demonstrators

The prosecution of children under terrorism
laws rose over the period 2006 to 2010, with a significant rise in the number
of prosecutions in 2008 (the last available official statistics). In 2006,
legal proceedings under the Anti-Terror Law against 299 children were initiated
in that year; in 2007 the figure rose to 438 children, and in 2008 this rose to
legal proceedings initiated against 571 children.

Of these 571 children, 306 were charged
with membership in an armed organization, an offense in the penal code that is
also simultaneously punishable under the Anti-Terror Law. It is probable that
the other 265 children were prosecuted primarily under article 7/2 of the
Anti-Terror Law (“propaganda for a terrorist organization”).

In response to the rising number of
prosecutions revealed in these figures, throughout 2009, local civil society groups
campaigned extensively against the treatment of children (whom the press dubbed
“the children who throw stones”) under the Anti-Terror Law (though
it was not the Anti-Terror Law alone that led to their extensive convictions
and harsh sentencing). A signature-based campaign called “Those Who Call
for Justice for Children” (Çocuk
için Adalet Çağırıcıları) was a leading force, and
those involved advocated concertedly and regularly
across parties, launching a huge media campaign to press for the repeal of
relevant articles of the Anti-Terror Law and an end to the use of terrorism
laws and articles of the Law on Demonstrations and Public Meetings against
children.[46]

In 2009, the United
Nations Committee on the Rights of the Child expressed concern that 2006
amendments to the Anti-Terror Law “allow for the prosecution of children
above 15 years as adults in Special Heavy Penal Courts.”[47]
The committee expressed particular concern “over reports indicating the
application of the ATA [Anti-Terror Act, i.e. Anti-Terror Law] on grounds such
as the presence or participation in demonstrations and public
gatherings.”

The committee made a number of recommendations, including
that the Turkish government amend the Anti-Terror Law “to ensure that
children are not tried as adults in Special Heavy Penal Courts” and that
they be “guaranteed the protection of juvenile justice standards in
ordinary courts….” The committee also called on Turkey to ensure “that
children are only detained as a measure of last resort and for the shortest
possible time period,” and to afford children a number of other
procedural protections.[48]

The government started and then stopped its
efforts to change laws and practices related to children. In September 2009,
following enormous public pressure, and just before the Committee on the Rights
of the Child was to publish its conclusions, the government announced that it
would repeal several provisions of the Anti-Terror Law and ensure that all
those under 18 years of age would again be tried in juvenile courts.[49]
Children who received sentences of less than two years would be eligible to receive
a suspended sentence and those aged 15 to 17 could benefit from greater discretionary
sentence reductions.[50] Yet the government shelved the amendments in December 2009, most
likely in reaction to the death of seven soldiers in a December 8 PKK attack in
Tokat province.

In June 2010, Minister of Justice Sadullah
Ergin stated that there were 206 children in prison in Turkey convicted of, or
standing trial for, terrorist offenses, and that there was a total of 2,506
children in prison for all offenses.[51] However, the campaign for change continued, in March 2010 the
government revived the plan, and on July 22, 2010, the Turkish parliament
adopted several amendments to ensure that in future
children will only stand trial in the juvenile justice system.

The positive aspects of the “Law
Amending the Anti-Terror Law and other Laws” (Law no. 6008),
published in the Official Gazette on July 25, 2010, include the
following provisions: all children will henceforth stand trial in juvenile
courts, or adult courts acting as juvenile courts; child demonstrators who commit
“propaganda crimes” or resist police dispersal will not be charged
with “committing crimes on behalf of a terrorist organization”
(Article 2/2, Anti-Terror Law); and children will not face aggravated penalties
and may benefit from sentence postponements and similar measures for public
order offenses. The amendments also reduce penalties for both children and
adults under the Law on Demonstrations and Public Meetings for forcibly
resisting police dispersal and offering “armed resistance,”
including with stones, during demonstrations.[52]

Yet the new law omits any provision to prevent children from
being charged with terrorism propaganda offenses (either under Article 7/2 of
the Anti-Terror Law or Article 220/8 of the Turkish Penal Code).

The new law also failed to state directly that
Turkish Penal Code Articles 220/6-7 (“committing a crime on behalf
of an organization” and “aiding and abetting an organization
knowingly and willingly”) used in conjunction with Article 314
(“membership in an armed organization”) would not be applied
to children. Instead, the amendment focused on the non-applicability of Article
2/2 of the Anti-Terror Law in cases of children who had committed
“propaganda crimes” or had resisted police dispersal. As
stated earlier, Article 2/2 of the Anti-Terror Law states: “A person who
is not a member of a terrorist organization, but commits a crime on behalf of
an organization, is also deemed to be a terrorist offender and is punished as a
member of the organization.”[53] This article connects directly with Turkish Penal Code Article
220/6 (“A person who commits a crime on behalf of the organization although
he is not a member of the organization shall also be punished as though a
member of the organization”). The non-applicability of Anti-Terror Law
Article 2/2 to most child demonstrators would thus appear to block the courts
from applying Turkish Penal Code Articles 220/6-7 and 314/2-3 to
children. To reduce the possibility of any ambiguity on this point, it
would have been preferable for the new law to state directly that 220/6
(“committing a crime on behalf of an organization”) and 220/7
(“aiding and abetting an illegal organization”), both punishable as
“membership in an armed organization,” are no longer applicable to
children.

It should also be noted that under the new
law, child protestors accused of using explosive substances, including Molotov
cocktails, may still be charged with “committing a crime on behalf
of a terrorist organization.” Only the implementation will reveal whether
courts continue to press this charge.

Overall it will be very important in the months ahead to
monitor the implementation of the July 2010 legal amendments to make sure that
they have closed the door on the prosecution of child demonstrators as members
of armed organizations simply on the basis of their participation or actions
during public gatherings.

In the days after the amendments had entered into force on
July 25, courts in Adana, Diyarbakir, and Van, among other places, immediately
released children from prison who were serving sentences or in pretrial detention
on terrorism-related charges. In the coming months the Court of Cassation is
expected to overturn all convictions of child demonstrators meted out by the
adult special Heavy Penal Courts. Special Heavy Penal Courts will issue
decisions of non-jurisdiction for the cases against children and transfer the
cases to the juvenile courts. The children will be retried in juvenile
courts (in children’s heavy penal courts in provinces where such courts
exist) and on the basis of the legal amendments passed as law no. 6008
adjustments will be made to the charges on which they stand trial. In most
cases, charges of “committing a crime on behalf of an organization”
(Article 220/6, Turkish Penal Code) used in conjunction with “membership
in an armed organization” (Article 314/2, Turkish Penal Code) will be
dropped. Most children convicted of other offenses (such as “propaganda
for a terrorist organization,” Article 7/2, Anti-Terror Law) are likely to
benefit from sentence postponements. Since this report was finalized
during the judicial recess when no retrials had yet begun, from Fall 2010 it
will be important to monitor how the law is applied to new and ongoing cases,
as well as to cases in which there is already a confirmed sentence.

Of relevance to adult demonstrators as well
as children was a provision in the July amendments which reduced penalties for
all those who violate articles of the Law on Demonstrations and Public Meetings
by forcibly resisting police dispersal or offering armed resistance, including
with stones.[54] While this report does not deal in detail with articles of
the Law on Demonstrations and Public Meetings, the amendments to that law may
result in lower overall sentences for adult demonstrators.

The most important failing of the July
legal amendment was the failure to amend or repeal the extremely punitive laws on
“committing a crime on behalf of an organization” (article 220/6)
and with it the equally vague “knowingly and willingly aiding and
abetting an illegal organization” (article 220/7). These can still be
applied to all adult demonstrators. The greatest failing of the new legal
amendment is the fact that the most problematic and vaguely drawn law which,
following the case-law, has resulted in long prison sentences for hundreds of
adult and child demonstrators remains in place and will continue to be widely
applied to anyone aged 18 and over.

Statistics on Prosecutions of
Child Demonstrators under Terrorism Laws

In 2009, nongovernmental organizations
attempted to collect their own statistical data on cases of child demonstrators
prosecuted under terrorism laws, which provided a fairly clear picture of the
pattern of convictions of children in the courts of Adana and Diyarbakır. It is worth reviewing their research
here, as nongovernmental organizations will continue to monitor how the
implementation of the July amendments changes the situation of child
demonstrators.

In November 2009, the Adana branch of the
Human Rights Association reported that it had identified 106 children convicted
of terrorism offenses in the period between June 2008 and October 2009 in the
Adana courts (92 of these convictions were in 2009). Of these 106 children, 104
had been convicted of “committing a crime on behalf of an
organization” (Article 220/6, Turkish Penal Code) and therefore
“membership in an armed organization” (Article 314/2, Turkish Penal
Code). Eighty-three had also been convicted of “making propaganda
for a terrorist organization” (Article 7/2, Anti-Terror Law). After
reductions on account of their ages, these children received prison sentences ranging
between four and five years. Just two children among the 106 were convicted
only of “making propaganda for a terrorist organization.”[55]

Of the group of 106 children, 12 children were
13 or 14 years old, and all had stood trial in the Special Heavy Penal Courts,
although Turkish law stipulates that children under 15 years of age must be
tried in a children’s heavy penal court. There is no such court in Adana,
and no arrangement was made to transfer the trials to a juvenile heavy penal
court in another city. All but one of the 12 children under age 15 received a
prison sentence of more than four years. These convictions are currently before
the Court of Cassation and should be quashed following the July 2010 changes in
the law.

In January 2010, lawyers on behalf of the
Adana branch of the Human Rights Association and the civil society initiative
Those Who Call for Justice for Children (Çocuk
için adalet çağırıcıları),
were able to identify 11 ongoing Adana trials in which
60 children were being prosecuted under these laws. However, this figure did
not necessarily represent all cases against children in the Adana courts. [56]

According to an unpublished October 2009
report by the Diyarbakır coordinator of the Justice for Children
Initiative (Çocuk İçin Adalet Girişimi),
159 children ages 15 to 17 were being tried in ongoing proceedings in the
Special Heavy Penal Courts in Diyarbakır, and 15 children ages 12 to 14
were being tried in the juvenile heavy penal court for terrorism offenses. At
the time of the report’s completion, in the cases of 93 children, lower
courts had passed verdicts, with convictions in 56 cases.[57] The total
number of 267 cases examined concerned trials spanning the period 2008 to
September 2009. The report stated that the number of case files examined did
not represent the total number of such cases over that period as there had been
difficulties accessing all files.

Human Rights Watch has no recent figures on
the number of prosecutions in the Istanbul, Izmir, Ankara, Van, and Malatya
courts.

Lack of
Detailed Statistics on Prosecutions of Demonstrators under Terrorism Laws

The Ministry of Justice has not released
statistics on the number of trials opened in 2009 and early 2010 under Articles
220 and 314 of the Turkish Penal Code, although all lawyers interviewed in the
course of the research for this report indicated that they had witnessed a
significant rise in the past two years in the number of prosecutions of
demonstrators under these articles.

Nongovernmental organizations have made no known
attempts to compile data on the number of prosecutions and convictions of adult
demonstrators under the same laws that affected children. However, based on
information received from lawyers and a survey of case files, the number of
prosecutions and convictions would appear to be much higher.

Even if the figures were available, it
would not be possible to tally the number of cases in which Article 220/6 and
220/7 are used in conjunction with Article 314 in any year, because the numbers
are not disaggregated. Since Article 220 is most commonly used against those
prosecuted for membership in organized crime, it is not possible to determine
how many cases were initiated against demonstrators. In any case, this report focuses
on the increase in prosecutions since the Özer case, which became binding
law for lower courts in March 2008.

V. Restricting the Rights to Freedom of Assembly and Expression

Demonstrators face harsh punishments not
because they are violent—but because the Turkish authorities believe the
act of protest on Kurdish issues entails ideological support for the PKK. Prosecutors
and courts have focused on the number of demonstrations an individual has attended
as an important factor in determining whether he or she has been acting on
behalf of an armed organization. We consider here cases in which the defendant
committed no violent act and in which the content of slogans cannot be argued
to amount to incitement to violence. Instead, in these cases, court records
establish that the defendant joined demonstrations on more than one occasion
and expressed an outlook ideologically similar to that promoted by an illegal
organization. One judge who has written on the use of terrorism laws in the
wake of the General Penal Board’s ruling in the Özer case has
summarized the approach of courts as follows:

In cases where it is understood that the
perpetrator is engaged in activities and actions which demonstrate the
continuity, variety, severity and effectiveness of their organic link with the
organization though without posing danger, it is necessary for them to
be punished with the crime of membership in an armed organization [emphasis
added].[58]

Case of Veysi Kaya

Veysi Kaya attended public demonstrations
on three occasions between August 2005 and February 2007.

Photographic
evidence presented at trial established that Kaya was present at a
demonstration in Diyarbakır on August 11, 2005, protesting Prime Minister
Recep Tayyip Erdoğan’s visit to the city. He had
also attended a demonstration against the prison conditions of PKK leader
Abdullah Öcalan on January 16, 2006, and a protest on February 14, 2007,
the eve of the anniversary of Öcalan’s capture by the Turkish
intelligence services in 1999.[59]

Kaya was detained a few days after the
third demonstration and charged with three separate counts of “making propaganda
for the PKK” (Article 220/8, Turkish Penal Code), one for each
demonstration attended. There was no evidence that he had participated in any
violent action. He was held in pre-trial detention.

On the basis of photographic evidence
showing that at two demonstrations, Kaya had carried banners supporting Öcalan,
and on two occasions, he had been seen shouting pro-Öcalan slogans,
Diyarbakır Special Heavy Penal Court No. 4 on April 25, 2006 convicted him
of three counts of “making propaganda for a terrorist organization or its
aims” (Article 220/8, Turkish Penal Code). The banners the defendant carried
included the words, “Öcalan is the only interlocutor—Democratic
People’s Initiative” (carried on August 11, 2005), and “Mr.
Öcalan is our political representative” (carried on February 14,
2006). Based on video footage, Kaya was determined to have shouted the
following slogans: “Long live leader Öcalan” (on January 16,
2006), and “We are with you, chairman, with our souls and our
blood” on February 14, 2006). For each of these three separate incidents,
the Diyarbakır court sentenced him to a one-year prison term, which was in
each case reduced to 10 months, so that his total prison sentence added up to
30 months. The court also stripped him of political rights (such as the right
to be elected to public office, to serve on the boards of foundations,
associations, trade unions, or political parties) for the duration of his
prison sentence, as is the custom for terrorism offenses (Article 53/1, Turkish
Penal Code).[60]
The court released Kaya from detention pending the result of his appeal.

Following his conviction, the
defendant’s lawyers lodged an appeal against the decision with the Court
of Cassation. On November 4, 2008, following the decision in the Özer case, the Ninth Penal Chamber of the
Court of Cassation quashed the conviction, arguing that on the basis of the
evidence Veysi Kaya should not have been convicted of “propaganda”
crimes but rather for the more serious offense of “membership in an armed
organization” (Article 314/2, Turkish Penal Code) because he had
“commit[ed] a crime on behalf of an illegal organization, while not …
a member of that organization” ( Article 220/6, Turkish Penal Code) punishable
with a five- to 10-year prison sentence. The Ninth Penal Chamber determined
that Veysi Kaya should be retried under those articles as well as on propaganda
charges, reasoning that he had acted “on the information and under the
wishes of the organization by carrying banners praising the organization and
shouting slogans when joining a press conference organized on three separate
dates in response to the appeal for action following the organization’s
strategy and issued by media channels belonging to the organization.”[61]

At the time of writing, the retrial of
Veysi Kaya on these more serious charges was pending in the Diyarbakır
court. However, given the developing practice of Turkish courts after the
Özer decision, it is almost certain that Kaya will be convicted and
receive a substantially higher prison sentence.

Case of Murat Işıkırık

The case of Dicle University student Murat
Işıkırık was
one of the first examples of a confirmed sentence in conformity with the
decision in the Özer case.[62]

Murat Işıkırık, a 23-year-old fourth-year student in the
Philosophy Department at Diyarbakır’s Dicle University, was arrested
and placed in pre-trial detention on the basis of video evidence showing him
present for just eight seconds during an unauthorized demonstration that took
place on March 5, 2007, on the university campus.

The video evidence shows him stopping
briefly beside some masked demonstrators and clapping, before walking off. Prosecutors
asserted that this protest, which included a boycott of classes, was one of a
number of demonstrations the PKK ordered through sympathetic news outlets
against the alleged poisoning of imprisoned PKK leader Abdullah Öcalan.
After identifying Murat Işıkırık at this protest, the police then discovered
from film archives that he had also been part of a mass funeral procession
accompanying the coffins of PKK members on March 28, 2006, which subsequently
spiralled into violent protests over several days (see above). Video footage
revealed that Işıkırık
had raised two fingers in a victory sign during the 2006 funeral procession.[63]
A subsequent expertise report could not confirm an allegation that he had also
shouted a slogan. No warrant had been issued for Murat Işıkırık’s arrest after the March 2006 protest,
or after another protest on December 21, 2006 that Işıkırık attended, according to video footage. At the
December demonstration—later excluded from the case by the court—Işıkırık had been among a group, the Dicle University
Students Association (DÜO-Der).
At that demonstration, he was filmed clapping and holding one side of a banner
calling for peace and a ceasefire in the ongoing conflict between the PKK and
the military.

Murat Işıkırık was remanded to pre-trial detention for the
duration of his trial. On November 30, 2007, Diyarbakır Heavy Penal Court
No. 5 convicted him of “committing crimes on behalf of the PKK,”
punished as equivalent to membership in the PKK (Articles 220/6 and 314/2-3,
Turkish Penal Code) and on two counts of “making propaganda for the
PKK” (Article 7/2, Anti-Terror Law) and sentenced him to a prison term of
six years and three months for the former crime and to two sentences of 10
months for the latter “propaganda” crime.

On January 29,
2009, the Court of Cassation upheld the six-year-and-three-month sentence. The
Court of Cassation ordered a retrial on the count of “making propaganda
for the PKK” on procedural grounds. If convicted on that count, Işıkırık
is likely to receive at least an additional 10-month sentence. Işıkırık has been in prison for almost three years
and has approximately four years left to serve. For his main sentence, he has
no remaining right of appeal left in Turkey, and his lawyers have applied
to the European Court of Human Rights in Strasbourg.

In a number of similar cases currently
pending before the Court of Cassation or ongoing in the lower courts, the sole
evidence against the defendant is his or her mere presence at a demonstration
and alleged sympathy with the aims of the demonstration. In light of the Court
of Cassation’s recent decisions, the convictions are likely to be upheld
on appeal.

Case of Mehmet Kocakaya and Others

Another Dicle University student, Mehmet
Kocakaya, was detained along with other students on April 6, 2009, when he
participated in a student protest against the fatal police shooting of a fellow
student. Mahsum Karaoğlan
and another man, Mustafa Dağ,
had been killed during an April 4, 2009 march to Abdullah
Öcalan’s home village of Ömerli (Kurdish name: Amara) in Urfa
province to mark the anniversary of the imprisoned PKK leader’s birth and
to protest his prison conditions and allegedly insufficient care for his health
problems. Kocakaya was charged with “membership in the PKK,” on the
grounds of “having committed a crime on behalf of the
organization,” as well as “making propaganda for a terrorist
organization,” and he was detained pending trial.[64]
The prosecutor stated in the indictment that the student protest was organized
in response to an appeal the PKK issued through the Roja Ciwan website, in
which the PKK called on the “youth of Kurdistan” “to
continue the march to freedom of Mustafa Dağ and Mahsum Karaoğlan,
who were executed on their way to Amara to celebrate the leader’s
birthday and ... to stand up more strongly for the will of the people in North
Kurdistan and in all parts of Kurdistan ...” The indictment named
Kocakaya as part of a group that organized a boycott of classes that day at the
campus, made the other students leave the building, shouted slogans on the
campus, and “incited the other students to get involved in illegal
activities.” He reportedly also tried to escape apprehension by the
police. The sole evidence against Kocakaya is video footage of him
shouting slogans such as “Long live Chairman Apo,” and “The
martyrs don’t die!” Mehmet Kocakaya was remanded to prison for the
duration of his trial. He was released on bail on April 13, 2010, after
receiving a seven-year-11-month prison sentence, which he has appealed. Three
of four fellow students from the university who stood trial with Kocakaya also
received prison sentences and remain in prison pending the outcome of their
appeals.[65]

Case of Three Dicle University Students Campaigning
for the Right to Mother Tongue Education

On February 25, 2010, Diyarbakır Heavy Penal Court No.
4 convicted three more Dicle University students to sentences ranging from six
years and three months to seven years and six months in prison for their roles
in a boycott of classes on October 15, 2008, and in a sit-in at which they read
out a public statement demanding mother tongue (Kurdish language) education.
The prosecutor determined that the PKK had issued appeals for popular protests
on the issue of mother tongue education on Roj TV and on websites such as
Rojaciwan (on September 12, 2008) and Kurdistan-Post (on September 19, 2008).[66]

The indictment states
that a group made up of a “crowd supporting the organization” had
gathered at around 10 a.m. on the university campus and shouted slogans such as
“The right to mother tongue language cannot be prevented!”
“The PKK is the people and here are the people!” “No life
without the leader!” “Don’t sleep, Amed [Diyarbakır],
protect your honor!” They had carried yellow, red and green cardboard
banners with slogans in Kurdish relating to mother tongue education: “Our
language is our existence!” “We want our mother tongue
language!” “Freedom of language is freedom of the people!”
The prosecutor judged “the words they carried, the slogans the group
shouted, the choice of colors on the cardboard banners” as amounting to
“propaganda for the illegal PKK terrorist organization on the
campus.”

Later, the indictment charges, a group of 20 to 30 people
“supporting the organization” entered classes in university
buildings and banged on professors’ lecterns (kursu), shouting
slogans such as, “Dicle, don’t sleep, protect your honor!”
and forcing the students to leave the classrooms.[67]

The Diyarbakır court determined that two students—Hasan
Yağiz
and Özgür Güven—had “hindered the education” of
other students (Article 112/1-b, Turkish Penal Code) “in the frame of the
organization’s [the PKK’s] activities” (Article 5, Anti-Terror
Law), and also “committed a crime on behalf of the PKK,” punishable
as “membership in the PKK.” The court handed them each seven- year-
six-month prison sentences (after discretionary reductions). The court ruled
that Nurettin Salhan had “committed a crime on behalf of the PKK”
for reading out the public statement.[68]

Mehmet Kocakaya (see previous case) and
Özgür Güven were among a group of Dicle University students in
prison in Diyarbakır that wrote a letter to the press in March 2010
describing their situation:

We are over forty Dicle University students held in
Diyarbakır D- and E-type prisons. In the face of great difficulties, our
families are putting us through education. Despite not having the means that
our peers in the West have, we worked hard and won places at university. But we
did not become complacent about the political, social and economic problems in our
country.

For this reason, we struggled to have various democratic
events, seminars, public statements, etc. All the events we joined were lawful
and were democratic and legal actions. Despite this, the security forces put us
under every kind of pressure.

[…]

Most of our families are outside Diyarbakır.
University friends come to visit [us in prison] when they don’t have
exams conflicting with visiting days. Most of our families manage to come to
the open visit once a month. Sometimes they cannot come. Some of us cannot
phone our families for the 10-minute per week phone call because the lines to our
villages are blocked. What remains to us is letters. We also get our exam
results from the letters our friends send, not from the notice boards in the university.
A prison vehicle (“the hell”) takes us in handcuffs to exams at the
university. We are brought to an empty classroom, with a soldier standing in
front of each window and door. We do our exams under the supervision of
soldiers and professors. Anyone who saw us would think we’d planned a
coup! Some friends write political solutions on the exam papers, some write
articles and poems, and others send greetings to their friends and professors. What
should they do? Some were arrested when they were only in their first year.
They either have no books/sources or what they have is inadequate. Even if they
had, it’s really hard to study or to prepare under prison psychology.
Finally, those of us who have signed our names below and those Dicle University
students we couldn’t reach and whose names aren’t written here are
facing punishments of up to 20 to 30 years. While at every trial hearing, we
hope to be bailed, like the children who have thrown stones, we face punishment
with sentences that match our ages. And some of our friends have been sentenced
… We are expecting you to raise your democratic voice and we want to see
you beside us against the injustice we’ve been subjected to and the
unlawfulness which the state deems fitting for the university students
who are its future …[69]

Cases of Vesile Tadik, Medeni Aydın, and
Selahattin Erden

In early 2010, Diyarbakır courts issued a series of
verdicts convicting individuals at their very first trial hearing of
“membership in the PKK” and for “committing a crime on behalf of the PKK” because
they merely shouted a slogan or held up a banner. The cases in question all
concern public gatherings on December 6, 2009, in the towns of Kurtalan, Eruh
and Siirt, all in the southeastern province of Siirt, for the reading of a
public statement protesting the prison conditions of Abdullah Öcalan.
Scores of people were reportedly prosecuted for their participation in
demonstrations in the three towns on the same day, which the police and
prosecutor argued came in response to an appeal the PKK issued through
sympathetic media outlets. While Diyarbakır Heavy Penal Court No. 6 heard
some of the cases, resulting in acquittals, Diyarbakır Heavy Penal Court
No. 4 heard some cases, resulting in convictions at the very first hearing.
Here we present three such cases.

Perhaps the most striking example is the case of
Vesile Tadik.

The public
prosecutor’s indictment of Vesile Tadik, a 49-year-old mother of six,
asserts that on December 6, 2009, she joined a group that gathered outside the
district Democratic Society Party (DTP) building in the town of Kurtalan, in
Siirt province. The group reportedly walked to the clock tower in the town
where DTP district head Fikret Örenç read out a public statement protesting the prison conditions and
treatment in prison of Abdullah Öcalan, before the group dispersed
“without incident.” Individuals in the crowd reportedly shouted
pro-Öcalan slogans (such as “Long live chairman
Öcalan!”), and Vesile Tadik was caught on a police camera holding up
a pro-Öcalan banner. The indictment describes the scene as follows:

The suspect Vesile Tadik opened and held up with friends a
banner on which was written “The approach to Öcalan is the approach
to peace” and actively joined in an illegal demonstration that turned
into propaganda for a terrorist organization and took place in Kurtalan
district on December 6, 2009, on the appeal of the PKK terrorist organization.

Thus, the investigation determined that the suspect’s
aim was to make propaganda for a terrorist organization by joining an illegal
demonstration that took place in the district of Kurtalan on the appeal of the
PKK terrorist organization, which is an armed organization under Article 314 of
the Turkish Penal Code no. 5237, because its aim is to separate a section of
the lands under the sovereignty of the Republic of Turkey from the
state’s governance by means of an armed struggle, and in this region, to
create an independent Kurdish state with the name Kurdistan, and with this aim,
it carries out violent actions (armed attacks, armed clashes, throwing Molotovs,
arson, bombings, etc.).[70]

The court reasoned that PKK statements to sympathetic media outlets
(four broadcasts on Roj TV on four different dates) amounted to a call to the
population to demonstrate, and that the gathering had therefore been ordered by
the PKK. It is striking to note that the public prosecutor did not choose to
charge anyone with the reading out of a public statement and organizing the
demonstration, and in fact, Vesile Tadik’s lawyer argues that the public
gathering was a legal one, for which the local DTP had secured permission.

On the strength of a photograph of Vesile Tadik holding up a
banner that read, “The approach to Öcalan is the approach to peace,”
she was convicted at her first court hearing on March 9, 2010, of “making
propaganda for a terrorist organization” (Article 7/2, Anti-Terror Law)
and of “membership in an armed organization” (Article 314/2, Turkish
Penal Code) for having “committed a crime on behalf of the PKK” (Article
220/6) to a prison sentence of seven years and one month (after discretionary reductions).
The slogan itself contained no incitement to violence and falls with the
boundaries of free expression.

The court also ignored the fact that Vesile Tadik is
illiterate, and speaks Kurdish but not Turkish, forcing her to rely on an
interpreter in court. She explained through her interpreter that she had not
been able to read the banner in Turkish. In view of this, her level of
education, and her general circumstances, the prosecutor argued that she should
be acquitted. The court disagreed. The case is on appeal.[71]

Diyarbakır Heavy Penal Court No. 4 also convicted
Medeni Aydın of “making propaganda for a terrorist organization”
(Article 7/2, Anti-Terror Law) and of “membership in the PKK” (Article
314/2, Turkish Penal Code) and of “committing a crime on behalf of the
PKK” (Article 220/6, Turkish Penal Code). Medeni Aydın, like Vesile
Tadik, received a seven-year-and-one-month prison sentence (after discretionary
reductions) at his first trial hearing on March 16, 2010. His crime was shouting
the slogan “Long live Chairman Apo!” and clapping at a December 6,
2009 demonstration at which a press statement was read out in front of an
assembled crowd in the town of Eruh, in Siirt province.

As was the case with Vesile Tadik, Medeni Aydın was not
detained at the demonstration itself, but a few days later, on December 11,
when he was brought before the Eruh prosecutor to testify. The prosecutor and
court decided that the crime of shouting the slogan, “Long live chairman
Apo!” was serious enough to justify remanding Aydın to prison
pending trial. He remains in prison pending appeal for shouting a slogan that
the court should have judged as falling within the boundaries of free speech.

On March 16, 2010,
Diyarbakır Heavy Penal Court No. 4 also convicted Selahattin Erden, a 40-year-old
father with 15 children from two wives, of “making propaganda for a
terrorist organization” and of “membership in the PKK” for
having “committed a crime on behalf of the PKK” to a
seven-year-and-one-month prison sentence. He too was placed in pre-trial
detention and remains in prison pending his appeal. Selahattin Erden’s
crime at the Eruh demonstration on December 6, 2009 was to have held one edge
of a banner reading, “Either free leadership and free identity, or
resistance and revenge to the end!” Diyarbakır Heavy Penal Court No.
6 acquitted Hayrettin Teğin, who held up the other corner of the same
banner, of committing a crime on behalf of the PKK. The court instead sentenced
him to the much lesser offense of “making propaganda for a terrorist organization”
(Article 7/2 Anti-Terror Law), for which he received a 10-month sentence but
was released from prison pending appeal.[72]

Case of Rihan Yıldız

Rihan Yıldız, a 56-year-old
mother of five, was sentenced at her first hearing on March 11, 2010, to nine years
and seven months in prison for “membership in a terrorist organization”
(Article 314/2, Turkish Penal Code) for “committing a crime on behalf of
the PKK” (Article 220/6, Turkish Penal Code) and for four counts of
“making propaganda for the PKK” (Article 7/2, Anti-Terror Law).[73]Arrested on December 21, 2009, and remanded to prison the next day, she
remains in a Diyarbakir E-type prison pending the result of her appeal.

Rihan Yıldız joined four
different Diyarbakir protests at which public statements were read out. The
evidence against her consisted of video footage showing her shouting
pro-Öcalan and pro-PKK slogans and clapping at the demonstrations, and at
two demonstrations, carrying a banner. The demonstrations she joined took place
on September 30, 2007 (protesting Öcalan’s prison conditions and
health problems); on March 26, 2008 (protesting fatal shootings by the police
during Newroz in Van, Hakkari, and Şırnak); on August 19, 2009 (calling for
a peaceful solution to the Kurdish problem); and September 11, 2009 (protesting
the arrests of Kurdish Democratic Society Party officials and activists, for
membership in the Union of Kurdistan Communities (KCK/TM), a body connected
with the PKK). At the last demonstration, video footage showed that she had
walked at the front of the group, holding a banner with the slogan,
“Don’t touch my party; don’t touch my political choice; this
operation will finish you,” referring to the arrests of party officials
and warning the authorities against the clampdown. Prosecutors asserted that
she shouted slogans including, “Long live chairman Apo!” “Oh
leader, we are with you, with our blood and souls!” and “The PKK is
the people, the people are here!” “The ambassador for peace is on İmralı [the island where Öcalan is imprisoned]”[74] During her trial hearing, the court identified her as having
carried a banner reading “Close down İmralı prison,” at the
demonstration on September 30, 2007, and identified
other similar slogans, which the video footage showed
she had shouted along with others.

The prosecutor argued in the indictment
that two of the demonstrations were organized in response to PKK
“appeals” made through media outlets (Roj TV and the Rojaciwan
website), and hence were ordered by the PKK.

At her trial hearing, Rihan Yildiz was
not fluent enough in Turkish to follow the proceedings, and relied on an
interpreter who spoke Kurdish. She stated, “My son died when he was in
the organization [PKK], I joined demonstrations for an end to the crying of
soldiers’ mothers and the mothers of members of the organization; my aim
is peace.” Her lawyer argued that she was illiterate and that she and her
much older husband had health problems and called for her acquittal and release
from prison. In passing the nine-year-and-seven-month prison sentence, the
court determined that she should remain in prison. The case was on appeal at
the time of this writing.

The majority of cases examined by Human
Rights Watch involved allegations of or evidence that defendants had “violently
resisted” the police or refused orders to disperse. In most cases this
“resistance” took the form of stone-throwing, or much more rarely,
throwing Molotov cocktails. Prosecutors often present video evidence to support
these charges, but numerous convictions have also been made based solely on a
police statement that the defendant was seen resisting orders to disperse.

In the cases
examined so far, the prosecutor accused the defendant of “committing a
crime on behalf of the PKK,” and therefore of “membership in the
PKK” solely on the basis of the defendant’s participation in one or
more demonstrations. In some, but not all, of these cases, the number of
demonstrations the defendant was alleged to have attended was considered
relevant to the determination of guilt. Where the defendant is accused of
stone-throwing or other violence, the charge of “committing a crime on
behalf of the PKK,” and therefore, of “membership in the
PKK,” need not be proven by evidence of participation in multiple
demonstrations. Defendants face the same charges for participation in a single
demonstration.

Case of Feyzi Aslan, Fatma
Gökhan, and Tufan Yıldırım

Feyzi Aslan, Fatma Gökhan and Tufan
Yıldırım all took part in a Diyarbakır demonstration on
March 26, 2008. Tufan Yıldırım was accused of making a victory
sign and shouting slogans during the demonstration; Fatma Gökhan was
accused of covering her face with a scarf (poşu) to conceal her identity, and of
having been among a group shouting slogans; all three defendants were accused
of having thrown stones at the police.

The authorities claim that the PKK used
sympathetic press outlets to broadcast appeals for the demonstration to protest
the harsh policing of earlier unauthorized Nevruz/Newroz demonstrations in the
towns of Siirt, Van, Hakkari, and Yüksekova.[75]
The indictment points to PKK statements the Fırat News Agency and the Roja
Ciwan website broadcast encouraging participation in demonstrations.

On March 10, 2009, Diyarbakır Heavy Penal
Court No. 4 convicted the three defendants as follows: Tufan
Yıldırım and Fatma Gökhan received prison sentences of 11
years and three months for “membership in the PKK,” (Article 314/2,
Turkish Penal Code) for “committing a crime on behalf of the PKK,” (Aricle
220/6, Turkish Penal Code) for “making propaganda for the PKK,” (Article
7/2, Anti-Terror Law) and for violating the Law on Public Meetings and
Demonstrations by violently resisting dispersal (Article 32/3, law no. 2911),
and Feyzi Aslan received a prison sentence of 10 years and five months for
“membership in the PKK,” for “committing a crime on behalf of
the PKK,” and for violating the Law on Assemblies and Demonstrations.[76]
The case is currently on appeal.

Case of H.A.

H.A., who was 15 at the time of the incident, and whose full
name is withheld in this report, joined in a demonstration in the
town of Silopi in Şırnak province on October 19, 2008, organized by the local branch of the Democratic
Society Party (DTP), at which the DTP provincial chair spoke. The demonstration
was organized under the slogan, “Neither the Justice and Development
Party, nor Ergenekon, the solution is a democratic republic”[77]

The prosecutor argued that this slogan did
not reflect the real motivation for the demonstration and that the PKK was
behind it. He argued that two days before the demonstration, the Fırat
News Agency had broadcast news about the alleged ill-treatment of Öcalan
in prison, and the PKK military wing had issued a statement to the prime
minister threatening to respond to any such “attacks” on
Öcalan in the future. The prosecutor also pointed to an October 17, 2008
broadcast by Roj TV calling on the Kurdish population to demonstrate and to
close workplaces and boycott school classes to protest Prime Minister Erdoğan’s October 20 visit to the southeast.

For these reasons, the prosecutor accused
H.A. of acting under PKK orders when he joined the Silopi demonstration and
therefore charged him with “membership in the PKK,” (Article 314/2,
Turkish Penal Code) for “committing a crime on behalf of the PKK,”
(Article 220/6, Turkish Penal Code) along with “making propaganda for the
PKK,” (Article 7/2, Anti-Terror Law) and violently resisting dispersal.

Video evidence showed that H.A. had held
the corner of a banner that showed Öcalan’s picture and a PKK flag while raising his right hand in
a victory sign, had partially hidden his face with a scarf, and had thrown
stones at the police. The 15-year-old defendant admitted his actions, but
argued that he was not a PKK member, had not joined the demonstration with the
intention of making propaganda for the PKK, and had not acted under the
organization’s instructions. Instead, H.A. stated that he “had
joined in the incidents with the ignorance that comes with group psychology,”
and regretted it.

H.A. was convicted, and, after benefiting from reductions on
the basis of his age, sentenced to a prison term of seven years and six months.
He was released on bail pending the decision on appeal.[78]
Following the July 2010 amendments, his sentence should be quashed by the Court
of Cassation. Any retrial will take place in a juvenile court and any prison
sentence should be postponed or otherwise suspended.

Case of B.S.

B.S., who was 15 years old at time of incident, and whose
name has been withheld, participated in a demonstration on
October 9, 2009, in Batman, on the eleventh anniversary of Abdullah
Öcalan’s expulsion from Syria in 1998. She was apprehended by police
at the demonstration and the prosecutor’s indictment described how
“defendant B.S., wearing a black-and-white scarf (poşu) with the aim of hiding her face, had
been active among a group throwing stones and Molotov cocktails.” The
evidence against her was based on video footage in which she was identified,
though there was no video evidence of her actually throwing stones or Molotov
cocktails.

Diyarbakır Heavy Penal Court No. 4
sentenced B.S. to seven years and six months in prison at her first court
hearing on December 29, 2009.[79]
The court refused her bail pending appeal.

Two lawyers who visited her in the Diyarbakır
prison said that she and another young girl prisoner had asked hopefully
whether the lawyers had come to get them out of there and whether they could go
home yet.[80]
Following the July 2010 amendments, B.S. was released from prison.[81] Her sentence will be quashed by the Court of Cassation and any
retrial will take place in a juvenile court.

There are hundreds of cases of adults and children similar
to the five discussed above.

Human Rights Watch spoke to several prosecutors about the
laws and the case law that make such convictions possible. One prosecutor
expressed deep concern that the drafting of Article 220 represented a
“systemic error,” which could only be rectified by rewriting the
law:

Where once we would apply Article 7/2 of the Anti-Terror
Law when it came to charging demonstrators who engage in the kind of activities
we are seeing today, after the General Penal Board’s decision, we are now
obliged to apply Articles 220/6 and 314/2 of the Turkish Penal Code. The case
law on this serves no good purpose. It isn’t a case of poor implementation
by the courts, but rather, case law we must conform with.

Referring in particular to children prosecuted under these
laws, he commented: “Those who are caught by the police during
demonstrations and are put on trial are not experienced, actually. The same
children who throw stones and Molotov cocktails at the police are often those who
will also agree to play football with them!” He was opposed to the imprisonment
of children, which he felt tended to radicalize them:

I’m afraid that after prison these children may go to
the mountains [i.e. join the PKK]. I remember one child who in court was
genuinely sorry for what he had done and regretted it. Once he had spent time
in prison, he wrote to me telling me he had changed his mind, he was angry and
no longer regretted anything.[82]

These views were not shared by another prosecutor
interviewed by Human Rights Watch. The second prosecutor pointed to “the
special conditions prevailing in Turkey, which have seen over 35,000 killed due
to terrorism.” He was unwilling to criticize the existing laws or the
case law of the Court of Cassation, but suggested that it was important to
attempt to draw distinctions between the kinds of demonstrations that take
place. Thus, in his view, March 21 Newroz/Nevruz celebrations constitute a more
legitimate grounds for a public gathering, while February 15, the anniversary
of the return of Öcalan to Turkey, is not legitimate. He argued that
prosecutors should think along these lines.[83]

VII. Convictions Based
Solely on Police Identification

In the cases discussed above, the verdicts depend on video
footage showing the role of the individuals in demonstrations. In other cases
examined by Human Rights Watch, the evidence against the defendants consisted
solely of police reports alleging participation in criminal acts during
demonstrations without any corroboration. On the basis of such statements,
courts have authorized pretrial detention, and these police reports have often
been the main evidence put forward at trial. In many of these cases, the police
identification of the defendant(s) at the time of the demonstration, and months
later in court, seems highly questionable, given the difficulties of identifying
individuals in the middle of large demonstrations. Without corroborating
evidence, these statements raise concerns about possible abuse. Human Rights
Watch has concerns that in these cases there is a risk that the police may write
up records claiming to have seen an individual actively participating in a
demonstration and throwing stones there, simply because they have apprehended
that individual and need to justify detaining the person after the fact.

Case of Murat Baran

In the case of 21-year-old Murat Baran, apprehended for
participating in a February 15, 2009 demonstration in Mersin, the police and
prosecutor determined that the fact that the individual had half a lemon in his
hand was evidence that he had intentionally participated in the demonstration.
The police argued that it was common knowledge that demonstrators apply lemon
to their faces and eyes to counteract the effects of tear gas. The court agreed,
and made no efforts to summon witnesses who might have testified in court as to
whether they had seen Murat Baran participate in the demonstration. The individual
thus got a nine-year-and-nine-month prison sentence (after discretionary reductions)
for “membership in the PKK,” (Article 314/2, Turkish Penal Code)
for “committing a crime on behalf of an organization,” (Article
220/6, Turkish Penal Code) for “making propaganda for a terrorist
organization,” (Article 7/2, Anti-Terror Law) and for resisting the
police. The only evidence produced was the half lemon in his hand.[84]
Murat Baran has been in detention for the duration of his trial and is likely
to remain in prison pending the result of his appeal.

The case of Murat Baran is among the most concerning.
However, there have also been other examples of individuals detained and placed
in pretrial detention in the absence of camera images or witness testimonies
asserting that they participated in a demonstration. In one such case, police
officers reportedly detained six children between the ages of 13 and 16 in Bingöl on the
grounds that they were sweating and their hands were dusty and sooty,
suggesting that they had lit a fire during the protest.[85] Three
of the six were placed in pretrial detention on this basis, to be later
released at their first trial hearing.

Case of Abdulcelil Karaş

Abdulcelil Karaş was seen in
video stills standing apparently silently in the crowd during the March 28,
2006 Diyarbakır protests. In court, Karaş claimed
that he had been on his way to the hospital from the café where he
worked to collect the results of some medical tests. A police report states
that Karaş was among those who threw stones at the
police. One police witness in court identified Karaş. Another stated that he could not positively identify Karaş,
but that the content of the police report at the time had been correct. On this
basis, Karaş,
who was released on bail during his trial, received a prison sentence of six
years and three months. This case is currently on appeal.[86]

Case of Salih Özbek,
Seyithan Akbal and Others

In a similar case, five suspects, including
Salih Özbek and Seyithan Akbal, both aged 60, were detained at a protest
against Prime Minister Erdoğan’s visit to Diyarbakır on October 20, 2008, and were
placed in pretrial detention. The only evidence against Salih Özbek and
Seyithan Akbal is a police report alleging that they were witnessed directing a
group of protestors that violently resisted police dispersal. The police report
claims the men’s hands smelt of a burning substance, which they conclude
was because the men had burnt car tires, and according to the police, there
were traces on the men’s hands that showed they had thrown stones. Video
footage shows the two men present in the demonstration, but not throwing stones
or offering violent resistance. The indictment describes the actions of the
defendants in absolutely identical terms, with each accused of taking a
position at the front of the demonstration. On October 6, 2009, all five
suspects were convicted. Salih Özbek and Seyithan Akbal were both sentenced to 11 years and three
months in prison. Salih Özbek is still in prison; Akbal was released on
bail at an earlier hearing. Lawyers have appealed the convictions.[87]

Case of Ramazan Uçgün and İdris Üzen

Ramazan Uçgün
and İdris Üzen were
allegedly part of a group that burned car tires and shouted slogans in support
of the PKK and Abdullah Öcalan during a demonstration in Cizre on
March 20, 2008, the night before the March 21 festival of Newroz/Nevruz. A
police report represents the sole evidence for the prosecution of the two men.[88]

Medical reports show that İdris Üzen suffered a dislocated shoulder, for which he received
medical treatment, including a plaster cast, in the hospital.[89]
He alleges that his injuries were the result of excessive use of force by the
police officers who apprehended him, and complained to the prosecutor and in
court. So far, there is no evidence of any investigation into that complaint.

After spending almost two years in prison
through the duration of their trial, Uçgün and Üzen
were convicted at their twelfth trial hearing of “membership in the PKK”
(Article 314/2, Turkish Penal Code) on the basis of having “committed a
crime on behalf of the PKK,” (Article 220/6, Turkish Penal Code) in
response to an “appeal” to protest by the armed group; with
“making propaganda for the PKK,” (Article 7/2, Anti-Terror Law) and
with violating the Law on Demonstrations and Public Assemblies. Uçgün received an 11-year-and-three-month prison sentence (after
discretionary reductions), and Üzen, a nine-year-and-seven-month prison
sentence (after discretionary reductions).[90]
The case is on appeal and the two will remain in prison pending the results of
their appeal.

*
* *

Media outlets do not even announce some of
the smaller and more local demonstrations, yet the charge of acting under
orders of the PKK is included in all such cases. Courts in Adana in particular
have justified convicting child defendants for the most severe charges by claiming
that the PKK’s “appeal” to participate in demonstrations is a
continuous one, seeming to suggest that no specific address to the local
population is needed.

Case of M.Ö. and İ.S.

M.Ö., who was 15 at time of incident, and
whose name has been withheld, and İ.S., who was age 16 at time of incident, and whose name has been withheld,
were apprehended by police at a March 8, 2009 demonstration in a neighborhood
of Adana. According to the prosecutor’s indictment, a group of
approximately 50 to 60 people had shouted pro-Öcalan slogans, assembled
barricades in the road with trash cans, and resisted police dispersal by
throwing stones. The police apprehended the two defendants, whom they alleged were
among the group. They were remanded to pre-trial detention and on June 2, 2009,
Adana Heavy Penal Court No. 6 convicted them at their first court hearing to
prison sentences of four years and nine months under Turkish Penal Code Articles
220/6 and 314/2-3 (“committing a crime on behalf of the PKK” and
“membership in the PKK”) and for “making propaganda for a
terrorist organization” (Article 7/2, Anti-Terror Law).[91] The two defendants were not released on bail. Information about
their possible release following the July 2010 legal amendment was not
available at the time of writing.

In this case there is nothing in the
indictment to suggest that the PKK made a particular “appeal” to
demonstrators to participate in this demonstration. After giving a summary of
the history of the PKK, naming its various wings and organizational bodies, the
indictment identifies a generalized “appeal” to youth to
participate in protests:

All types of
appeals to action in the cities for retaliation against the cross-border and
domestic operations by our security forces against the PKK/ KONGRA-GEL, and for
an improvement of the situation of terrorist leader Abdullah Öcalan in İmralI Prison, were made by the senior members
of the organization by means of press and broadcasting channels belonging to
the organzation ...[92]

While the Court of Cassation decision in the Özer case and subsequent rulings by local
courts had pointed to direct appeals by the PKK to the population to join a
particular demonstration, the Adana court interpreted this requirement of
showing an “appeal” by the PKK more loosely, suggesting that the
organization issued a perpetual summons to protest, and so prosecutors need demonstrate
no specific appeal to the population to join a particular demonstration. In
presenting his case in the court on the day of the verdict, the prosecutor
stated that, “the defendants complied with the perpetual appeal to
action of the armed terrorist organization PKK in joining a 100-person group at
16:30 on the day of the crime [emphasis added].”[93]

***

Human Rights
Watch has come across two cases in which a judge openly challenged the use of
Article 220/6 and 220/7 of the Turkish Penal Code, and called on the
Constitutional Court to amend the provisions. The same Diyarbakır-based
judge issued a dissenting
opinion in each case, criticizing the decision of the panel to convict
individual demonstrators of “membership in the PKK” on the basis of
“having committed a crime on behalf of the organization.”

One such case involved Mehmet Fidan, an adult
who was apprehended on February 14, 2008 in the town of İdil in Şırnak
province after joining an unauthorized demonstration on the anniversary of Öcalan’s capture nine years earlier. The indictment and decision view the event as organized in response to
a PKK appeal to demonstrate broadcast on Roj TV on February 3 and 5, 2008, and
also by the Fırat News Agency on February 5, 2008. Mehmet Fidan is said to
have “been among the group, setting up barricades, burning tires, and
throwing stones at the police.”[94]
As such, the case resembles scores of others. Mehmet Fidan received a prison
sentence of 10 years and five months for “membership in the PKK” (Article
314/2, in conjunction with Article 220/6, Turkish Penal Code) and for violently
resisting police dispersal of the demonstration. The dissenting judge argued
for his acquittal, raising many of the points that critics of the law have
raised.

Arguing that the first article of the Penal Code
provides for the protection of rights and freedoms, the public good and the
social peace, and advocates preventing crime, the judge focused on the need to deter
support for the PKK, and argued that provisions such as Article 314
(“membership of an armed organization”) applied by means of Article
220 (“committing a crime on behalf of an organization”) would only
radicalize Kurds and encourage their support for the organization. He argued
that the current application of the law, whereby individuals could be
imprisoned simply for showing their sympathy for the PKK, ironically resulted
in “ensuring that they acquired the mindset necessary for membership in
the organization.” He viewed it as counterproductive to try protestors in
the Special Heavy Penal Courts, and suggested that this does more to encourage popular
support for the PKK than to prevent it. Suggesting that it is highly
problematic for the state to punish individuals as “members of the PKK,”
when they had never joined the PKK’s mountain cadres or undergone
military and political training, this judge recommended that lawmakers amend Article
220/6 and 220/7 of the Turkish Penal Code.

The dissenting judge argued that some
provisions of the Penal Code are intended to strengthen the social peace and
prevent crime, including the “Effective Repentance” law. While a
person who spent eight years in the mountains as an armed member of the
PKK would typically get a five-year prison sentence, if that person turned him
or herself in, he or she would not have to serve any prison time at all under
the terms of the effective repentance law (Article 221, Turkish Penal Code). In
contrast, if the person had never taken up arms against the Turkish state as a
member of the PKK, but had merely been a peaceful demonstrator without any
direct link to the PKK, that person could face a five-year sentence for
“membership in the PKK,” without the prospect of reducing or
eliminating the prison time that the repentance law provides. Repeated
participation in demonstrations and multiple offenses could add years to the
sentence.

The judge noted that prosecutors have failed
to provide evidence that protestors ever heard or read the PKK’s
“appeals” to action.

There is no concrete evidence that these
appeals have reached these individuals.... but to demonstrate that such appeals
have been made on websites, they [PKK statements from news broadcasts] get
included in the case file by the police, although there is no hard evidence
that the defendant received the summons and committed a crime as a result of it.

For this reason, the judge recommended an
application to the Constitutional Court for the cancellation of Article 220/6.

The dissenting judge argued that Mehmet Fidan
ought to be acquitted.[95]

VIII. Human Rights Violations

Turkey
is party to a number of human rights treaties, including the International
Covenant on Civil and Political Rights,[96] the European Convention on Human
Rights,[97] and the United Nations Convention on the Rights of the
Child,[98] which by virtue of Article 90 of the Turkish
Constitution, have the force of law in Turkey.[99] These treaties guarantee freedom of expression and
association, the rights to liberty and security, and due process rights with
respect to detention and the criminal law, all of which Turkey is violating by
its harsh practice of routinely detaining and prosecuting demonstrators on
terrorism charges. Though these treaties have the force of law in Turkey, no
authority—either the police, prosecutors or the courts—is taking these
legally binding human rights obligations into account when confronting
legitimate, public action in opposition to the state’s policies on
treatment of the Kurdish minority.

Freedom of Expression and Assembly

Freedom of assembly is often
a particular manifestation of freedom of expression, and in the cases examined
in this report, freedom of assembly in southeast Turkey is clearly linked with Kurdish
political and cultural expression. Any regulation of, interferences with or
restrictions on the exercise of the right to assembly must also therefore fully
respect the right to freedom of expression, and other rights, such as the right
to liberty and security. Every time police intervene to disperse an assembly,
arrest those at protests and seek to prosecute individuals for the act of participating
in a demonstration, this constitutes an interference with the right to assembly
and expression. Such interferences are only permissible under international law
if they have a proper legal basis, are necessary in a democratic society for a
legitimate purpose, and are proportionate.[100]

The European Court of Human Rights has made clear on
numerous occasions:

… that the right
to freedom of assembly is a fundamental right in a democratic society and is
one of the foundations of such a society (see G. v. the Federal Republic of Germany [No. 13079/87, Commission decision of 6 March
1989, DR 60]; Rai, Allmond and “Negotiate
Now” v. the United Kingdom, no. 25522/94,
Commission decision of 6 April 1995, DR 81-A, p. 146). This right, of which the
protection of personal opinion is one of the objectives, is subject to a number
of exceptions which must be narrowly interpreted and the necessity for any
restrictions must be convincingly established. When examining whether
restrictions on the rights and freedoms guaranteed by the Convention can be considered
“necessary in a democratic society” the Contracting States enjoy a
certain but not unlimited margin of appreciation.… the freedom to take
part in a peaceful assembly is of such importance that a person cannot be
subjected to a sanction—even one at the lower end of the scale of
disciplinary penalties – for participation in a demonstration which has
not been prohibited, so long as this person does not himself commit any
reprehensible act on such an occasion (see Ezelin…).[101]

The cases documented in this report raise
serious concerns about restrictions on freedom of expression, association and
assembly, discrimination against those who demonstrate on the Kurdish issue,
and disproportionate charges and sanctions. Participants in demonstrations on
the Kurdish question routinely receive dramatically higher sentences than
others, not because of their conduct during demonstrations, but because of
their presumed motives for protesting and the political message they are assumed
to express. In this regard, the Court has also emphasized that:

Freedom of assembly and
the right to express one’s views through it are among the paramount
values of a democratic society. The essence of democracy is its capacity to
resolve problems through open debate. Sweeping measures of a preventive nature
to suppress freedom of assembly and expression other than in cases of
incitement to violence or rejection of democratic principles—however
shocking and unacceptable certain views or words used may appear to the
authorities, and however illegitimate the demands made may be—do a
disservice to democracy and often even endanger it.

In a democratic society based on the rule of law, political
ideas which challenge the existing order and whose realisation is advocated by
peaceful means must be afforded a proper opportunity of expression through the
exercise of the right of assembly as well as by other lawful means. [102]

In the Court’s view,
where demonstrators do not engage in acts of violence, it is important for
public authorities and officials to show a degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article 11 of the
Convention is not to be deprived of all substance.[103]

Clearly in cases such as those documented in this report, the imposition
of higher sentences because of political views imputed to the accused is an
unjustified restriction on freedom of assembly and expression and a violation
of Turkey’s human rights obligations. In practice, in many of these cases, the demonstrators are doing nothing
more than exercising their right to freely express their views. The
government cannot deem such conduct, which in itself is not an offense, to be a
crime merely by imputing a motive to participants (assuming that they are
acting under orders of the PKK). To infer criminal intent from mere
participation in a peaceful protest is a clear violation of the right to
freedom of assembly.

Principles of Legality, Fair Trial and Due Process

Individuals who commit
offenses such as throwing stones and burning tires may legitimately be
prosecuted and sanctioned under criminal law. However, the use of an expansive
interpretation of the law to render acts that are no more than an exercise of
freedom of speech, or low-level acts of violence, as terrorism offenses, and
sanction them as such, offends international human rights law.

Human rights law and the rule of law require that criminal
law be foreseeable and predictable, obligating states to define precisely all
criminal offenses.[104]
This obligation finds articulation in several provisions of human rights treaty
law legally binding on Turkey, and is a general principle of criminal law.[105]
The European Court of Human Rights explained:

The guarantee enshrined in Article 7, which is an essential
element of the rule of law, occupies a prominent place in the Convention system
of protection, as is underlined by the fact that no derogation from it is
permissible under Article 15 in time of war or other public emergency. It
should be construed and applied, as follows from its object and purpose, in
such a way as to provide effective safeguards against arbitrary prosecution,
conviction and punishment.

Accordingly … Article 7 ... embodies, more generally,
the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla
poena sine lege) and the principle that the criminal law must
not be extensively construed to an accused’s detriment, for instance by
analogy. From these principles it follows that an offense must be clearly
defined in the law.… The Court thus indicated that when speaking of
‘law’ Article 7 alludes to the very same concept as that to which
the Convention refers elsewhere when using that term, a concept which comprises
written as well as unwritten law and implies qualitative requirements, notably
those of accessibility and foreseeability ...[106]

The use of anti-terrorism laws against demonstrators in
Turkey clearly offends the principles of clarity and legality required by
international law in general, and by the European Convention on Human Rights in
specific.

There is no evidence that the vast majority of the
defendants considered in this report committed any act that would typically or
reasonably be considered “terrorism.” The terrorism charges that
are brought against these protestors are wholly disproportionate and do not
correspond to the nature or gravity of the acts committed. The
evidence leveled against such demonstrators varies widely in substance, raising
further fair trial and due process concerns.

Human Rights Watch
calls on the Turkish government as a matter of urgency to amend or repeal the
laws that in combination create a legal basis for these abuses of
Turkey’s international legal obligations.

UN Special Rapporteur’s Concerns about Vaguely
Worded Terrorism Laws

In his first report to
the UN Commission on Human Rights, Martin Scheinin, the UN special rapporteur
on the promotion and protection of human rights and fundamental freedoms while
countering terrorism, directly addressed the need for laws to adhere to the
principle of legal certainty and to be clearly and precisely drawn. He reminded
states that for activities to be prescribed by law, “the prohibition must
be framed in such a way that: the law is adequately accessible so that the
individual has a proper indication of how the law limits his or her conduct;
and the law is formulated with sufficient precision so that the individual can
regulate his or her conduct.” Furthermore, that “In the prohibition
of terrorist conduct, it is important for States to ensure that prescriptions
to that effect are accessible, formulated with precision, applicable to
counter-terrorism alone, non-discriminatory, and non-retroactive.”[107]

Following his 2006 visit to Turkey, Scheinin
expressed particular concern about the definition of terrorist crimes in
Turkish law. Relating his comments to the definition of terrorism in Article 1
of the Anti-Terror Law, he recommended that “the definition of
terrorist crimes should be brought in line with international norms and
standards, notably the principle of legality as required by article 15 of the
International Covenant on Civil and Political Rights (ICCPR), including defining
more precisely what crimes constitute acts of terrorism and confining them to
acts of deadly or otherwise grave violence against persons or the taking of
hostages [emphasis added].”[108]

Turkish Penal Code Articles 220/6 and 220/7
(“committing a crime on behalf of an organization” and
“knowingly and willingly aiding and abetting an organization”) are
striking examples of legal provisions that are so vaguely worded and lacking in
clarity about what is prohibited as to offer an individual no indication of how
to regulate or limit conduct. The special rapporteur also stated in relation to
Turkey: “Only full definitional clarity with regard to what acts
constitute terrorist crimes can ensure that the crimes of membership, aiding
and abetting and what certain authorities referred to as ’crimes of
opinion’ are not abused for other purposes than fighting
terrorism.”[109]
As the cases examined below demonstrate, the application of Turkish Penal Code
Article 220/6 and 314/3, in conjunction with Article 314/2 (“membership
in an armed organization”), directly bear out the concerns raised by the
special rapporteur.

While the case of Felat Özer included evidence
that Özer was among a group engaged in violent resistance to the police,
it is important to note that the reasoning of the General Penal Board of the
Court of Cassation did not focus on the matter of whether Özer had engaged
in violent resistance to the police or had endangered lives through violent
actions. Rather, the board focused on the matter of whether demonstrations had
been organized or ordered by the PKK, as evidenced by the organization’s
statements. As such, the General Penal Board was not primarily interested in
individual actions within demonstrations, and the pattern of convictions to
date suggests that evidence of violent activities only contributes to the
application of additional charges (such as damaging public property, or violently
resisting dispersal) on top of the standard charge of “committing a crime
on behalf of an organization,” indicating the charge of “membership
in an armed organization.”

Subsequent cases have followed this line of
reasoning. Thus, the courts have focused on participation in a demonstration
allegedly called by the PKK, rather than on violent conduct. In fact, as the
cases documented in this report show, a number of convictions involve only
nonviolent expressions of opinion that arguably do not amount to incitement to
violence but rather are within the boundaries of protected expression.

IX. Specific
Concerns Related to Prosecution of Child Demonstrators

Following the positive changes to the law
introduced by the Turkish government in July 2010, Human Rights Watch continues
to have two areas of concern about the treatment of child demonstrators on
apprehension. The first concern is that the new law does not end the
possibility that some children detained following demonstrations will be placed
in pre-trial prison detention for extended periods. The second area of concern
is the failure of the authorities to investigate the reports that child
demonstrators have been ill-treated following apprehension by members of the
security forces.

Pre-trial Detention of Children

In the majority of cases of child
demonstrators Human Rights Watch reviewed, the defendants were remanded into
custody pending trial. Given the lengthy processes of Turkish courts, this pre-trial
period could be as long as one year. Local human rights and children’s
rights groups interviewed for this report frequently raised concerns that the
detention of child demonstrators removes them from family socialization and may
deprive them of the possibility of continuing their education. Some expressed
concern that many children might become radicalized in prison and in the
long-term profoundly alienated from their families and the broader society.

Under the United Nations Convention on the
Rights of the Child, children should be arrested, detained, or imprisoned
“only as a measure of last resort and for the shortest appropriate
period of time.”[110]
The best interest of the child must be a primary consideration.[111]
In its 2001 review of Turkey, the United Nations Committee on
the Rights of the Child expressed concern about children’s“long periods of pre-trial detention and the poor
conditions of imprisonment and the fact that insufficient education,
rehabilitation and reintegration programs are provided during the detention
period.”[112]
It reminded Turkey that “pre-trial detention should be used only as a
measure of last resort, should be as short as possible and should be no longer
than the period prescribed by law. Alternative measures to pre-trial detention
should be used whenever possible.”

The Committee reiterated these concerns in September 2009,
urging Turkey to:

[…]c.) Ensure that children are only detained as a
measure of last resort and for the shortest possible time period. If in doubt
regarding the age, young persons should be presumed to be children;

d.) Guarantee that children, if accused of having committed
terrorist crimes, are detained in adequate conditions in accordance with their
age and vulnerability;

e.) Inform parents or close relatives where the child is
detained and allow contact;

g.) Guarantee children a periodic and impartial review of
their detention;

h.) Ensure that children in detention have access to an
independent complaints mechanism. Reports of cruel, inhuman and degrading
treatment of detained children should be investigated in an impartial manner;

i.) Afford educational programmes and recreational
activities, as well as, measures for all detained children’s social
reintegration;[113]

In numerous cases against Turkey, the
European Court of Human Rights has held that pre-trial detention of children is
too lengthy, finding violations of the right to release pending trial. For
example, in the case of Selcuk v. Turkey, the court concluded
“having regard particularly to the fact that the applicant was a minor at
the time, the Court finds that the authorities have failed to convincingly
demonstrate the need for the applicant’s detention on remand for more
than four months.”[114] In the case of Nart v. Turkey, “especially having
regard to the fact that the applicant was a minor at the time” the Court ruled that 48 days was too long a period of pre-trial
detention. [115]

A review of ongoing legal proceedings against child
demonstrators reveals that prolonged pretrial detention was being widely used
in 2009. A sample of ongoing cases in Diyarbakır and Adana courts revealed
that children (several of them on trial in the Diyarbakır courts as young
as 13 and 14) were typically placed in pretrial detention for periods of five
months, but in a significant number of cases, they were detained for periods of
over a year. For example, Human Rights Watch examined the cases
against 40 children on trial for participating in a February 16, 2008
demonstration in Cizre, and they were held in pre-trial detention for a period
of over one year.[116]

The prison population in Turkey is known to
have increased significantly over the past few years, with a high percentage of
remand prisoners, making overcrowding very common.[117]
A report on an April 2009 visit to the children’s dormitory of Diyarbakır
Prison by the Turkish Medical Association raised serious concerns about prison
conditions.[118]

Because we focus here primarily on laws, in
the course of the research for this report there was no attempt to undertake a
wider study of the treatment of children or adults in places of detention. However,
a representative of Human Rights Watch and representatives of the coalition of
domestic NGOs calling themselves the Justice for Children Initiative
interviewed a sample of 10 child demonstrators in Adana following their release
from prison. Given the seriousness of the reported irregularities in the
handling of child suspects, including allegations that they were ill-treated, a
summary of the findings from the sample interviewed in Adana is included here.

Ill-Treatment and Procedural
Irregularities in the Handling of Child Suspects[119]

In May-June 2009 interviews with 10
children who had been released from pre-trial detention in Adana and were
facing continuing legal proceedings in the Adana courts, Human Rights Watch
heard allegations of ill-treatment in every case.[120]
Both boys and girls reported ill-treatment—typically being roughed up,
slapped or beaten—as they were apprehended by members of the Rapid
Deployment Force (Çevik Kuvvet). The boys also reported
being beaten, slapped, threatened, and sworn at by gendarmes and prison guards upon
their arrival at the Kürkçüler E-type adult male
prison, where boys were routinely held, separately from adult men for periods
of about a week before being transferred to Pozantı
Children’s Prison. The boys also gave consistent reports of doctors slapping
and verbally abusing them in Kürkçüler E-type
prison. As a result, many had felt completely unable to report ill-treatment by
gendarmes and prison guards on arrival at the prison. For the most part, the
boys had not seen lawyers while in the E-type prison, and therefore any
complaints of ill-treatment were generally lodged much later, often at a first
court hearing. (The girls were transferred to a women’s prison and Human
Rights Watch heard no reports of ill-treatment at the prison from them.) The
findings of Human Rights Watch support the wider investigation into the
ill-treatment of child demonstrators undertaken in 2009 by the Adana branch of
the Human Rights Association. The association documented many reports of
ill-treatment of child demonstrators at different stages of their detention. All
the children Human Rights Watch interviewed complained of sleep disorders,
weight loss, and difficulty in resuming their old lives following their release
from prison.

All of the children Human Rights Watch interviewed
in Adana reported irregularities in the handling of their cases. The key
problems identified included:

i)Child suspects were
routinely held at the Anti-Terror Branch of the Security Directorate for
periods of several hours before transferring them to the Children’s
Branch of the Security Directorate. During this time, children were frequently
interviewed by police officers without the presence of a prosecutor or lawyer.
Both these practices contravene Turkey’s domestic law.

ii)Children were not informed of their rights as
detainees, or of their right to have a family member informed of their
detention; their families were not promptly informed of their detention and in
some cases, were erroneously told the children were not in detention.

iii)In the case of children the medical examination(compulsory
for anyone held in police custody) at the Forensic Institute in Adana was
routinely undertaken superficially and with the door open and within earshot of
the police.

iv)Children in Adana had no access to lawyers
until they were brought before a prosecutor for interrogation. Meetings with
lawyers were hastily conducted outside the prosecutor’s room in the
courthouse, if at all, and therefore in a manner that barely meets their right under
Turkish law to benefit from legal counsel.

After this report was researched, other
reports emerged of ill-treatment of child detainees in Adana. Adana lawyers
lodged complaints of serious ill-treatment of children in Ceyhan M-type prison.
The children, H.Y., U.D., A.A., K.F., İ.T., H.Ş.,
and M.D.,[121]
were transferred on January 22, 2010, from Pozantı Boys Prison to Ceyhan
M-type prison. They reported to their lawyer that prison guards subjected them
to prolonged beating with batons when they requested that they all be
transferred together to a particular ward that held adult male political
prisoners. In fact, they could not have legally been transferred to the adult
ward because of their age, but their request reportedly triggered a dispute,
and ill-treatment by the prison guards. They also reported to their lawyer that
guards poured buckets of cold water over them. Their lawyer reported to Human
Rights Watch that at the time of his meeting with the children, they bore
visible signs of having been beaten. One child had sustained a head injury, which was bandaged.[122]

Cruel, inhuman, and degrading treatment or punishment of any
detainee is strictly prohibited under international law. The Convention on the
Rights of the Child explicitly reiterates this universal prohibition in respect
of children. International guidelines on the detention of juveniles also
require that a parent or guardian be notified immediately when a child is
apprehended.[123]In 2009, the United Nations Committee on the Rights of the
Child called on Turkey to:

Ensure that children in detention have access to an
independent complaints mechanism. Reports of cruel, inhuman and degrading
treatment of detained children should be investigated in an impartial manner.

X. Recommendations

To the Turkish Government:

Amend laws applicable to adults and children

Urgently amend Turkish Penal Code Article
220 (“forming criminal organizations”), and repeal 220/6 (“committing
a crime on behalf of an organization”) and 220/7 (“aiding and
abetting an organization knowingly and willingly”), which are vague, lack
legal clarity and specificity, and are therefore subject to arbitrary
application.

Urgently repeal Turkish Penal Code Article
314/3 and Anti-Terror Law Article 2/2 (“committing a
crime on behalf of an organization”) providing for the linkage of
article 314/2 (“membership in an armed organization”) and Article
220/6 and 220/7 (above), as discussed in this report.

Amend Anti-Terror Law Article 7/2
(“making propaganda for a terrorist organization”) and Turkish
Penal Code Article 220/8 (“making propaganda for an organization or
its objectives”) to prevent them from being used to restrict freedom of
expression and peaceful assembly and to bring them into conformity with the
case law of the European Court of Human Rights.

Set up a review board to examine all cases
concluded under these articles for compliance with international human rights
law obligations, with a view to quashing sentences under Turkish Penal Code Articles
314/2 and 314/3 in connection with Articles 220/6 and 220/7.

Instruct the prosecuting authorities to
impose a moratorium on all ongoing prosecutions under the offending provisions,
so that they can be reviewed and assessed for compliance with international
human rights law. All prosecutions which would violate international human
rights standards should be dropped immediately.

Following the July 2010 repeal of Articles 9
and 13 of the Anti-Terror Law, review all convictions of juveniles currently on
appeal or upheld by the Court of Cassation and ensure that they are swiftly
quashed and transferred to juvenile courts for retrial, or that charges are dropped
under the terms of the new law.

To the Judiciary:

Limit pre-trial detention of adult demonstrators

Ensure that decisions regarding remand and
pre-trial detention are in strict compliance with international human rights
standards, which are legally binding and have the force of law in Turkey. Under
such standards, pre-trial detention should be the exception, not the norm and courts
should supply a fully reasoned explanation of decisions to prolong pre-trial
detention of individuals standing trial for participation in demonstrations.

In line with international human rights law,
refrain from placing in pre-trial detention nonviolent demonstrators against whom
there is no evidence that they will not present for trial, or would interfere
with witnesses or evidence.

End the pre-trial detention of child demonstrators

End the practice of prolonged detention of
children in fulfillment of Turkey’s obligations under the UN Convention
on the Rights of the Child and in conformity with the case law of the European
Court of Human Rights. Ensure that children are detained only as a matter of
last resort and for the shortest appropriate period of time.

Investigate all allegations of ill-treatment of child
detainees

Ensure any allegations of ill-treatment
lodged by child suspects /defendants raised before judges are investigated.

To the Police and Prosecuting Authorities:

Bring the handling of apprehended child
demonstrators into conformity with the law

End violations of the Criminal Procedure
Code in the handling of child suspects. Child suspects must be transferred
immediately to the Children’s Department of the Security Directorate; a
member of their family must be immediately informed of their detention, and
child detainees must be promptly informed of their rights.

Bar associations should be immediately
advised of all child detainees, so they can ensure the immediate provision of
legal aid to all child suspects in police detention in accordance with the
Criminal Procedure Code.

Prosecutors
should take steps to investigate any allegations of ill-treatment lodged by
child suspects /defendants and give child suspects/defendants the opportunity
to lodge such complaints at any stage following their apprehension by law
enforcement officials.

Conduct an independent investigation
into allegations that gendarmes, prison guards, and doctors working at Adana
Kürkçüler E-type prison in the first six months of 2009 beat and
otherwise ill-treated adults and children. Conduct thorough investigations into
all other reports of ill-treatment by members of the security forces and prison
guards to combat the culture of impunity

To Turkey’s International Partners, including
the European Union and the United States:

Use every opportunity to
encourage the Turkish authorities to undertake the aforementioned reforms to
address the concerns detailed in this report

Appendix: Translations of Relevant Articles:
2005 Turkish Penal Code and 2006 Revision to the Anti-Terror Law

1) Laws used to penalize demonstrators:

Turkish Penal Code Articles 220/6 in
combination with 314/2 and 314/3

Forming organized groups with the
intention of committing a crime

ARTICLE 220-(1)
Those who establish or direct an organization for the purpose of
committing crimes shall be sentenced to imprisonment of two to six years if the
structure of the organization, number of members, equipment and supplies are
sufficient to commit the intended crimes. However, at least
three members are required for the group to be deemed an organization.

(2) Those who become members of the organization established
to commit crimes shall be sentenced to imprisonment of 1 to 3 years.

(3) If the organization is armed, the sentenced stated above
will be increased from one fourth to one half.

(4) If crimes are committed within the framework of the
organization’s activities, these crimes will also be punished.

(5) The heads of the organization shall also be sentenced as
the perpetrators of all crimes committed within the framework of the activities
of the organization.

(6) The person who commits a crime on behalf of the
organization, although he or she is not a member of the organization, shall be
punished as a member of the organization.

(7) A person who aids and abets the organization knowingly
and intentionally, although he or she does not belong to the hierarchical
structure of the organization, shall be punished as a member of the
organization.

(8) A person who makes propaganda for the
organization or its objectives shall be sentenced to imprisonment of one to
three years. If the said crime is committed through the media and press,
the sentence will be increased by half.

Armed organization

ARTICLE 314-(1)
Any person(s) who forms an armed organization to commit the offenses listed in the
fourth and fifth sections of this chapter [Section Four: crimes against state
security; Section Five: crimes against the constitutional order and its
functioning], and commands this group, is punished with imprisonment of 10 to 15
years.

(2) Members of the organization defined
in the first paragraph are sentenced to imprisonment of five to 10 years.

(3) Other provisions relating to the
offense of forming an organization for the purpose of committing crimes are treated
[punished] in the same way as this offense.

Anti-Terror Law (no. 3713, as amended in
July 2006)

Article 2 [not amended].

(1) Any member of an organization founded to attain the aims
defined in Article 1 who commits a crime in furtherance of these aims,
individually or in concert with others, or any member of such an organization,
even if he or she does not commit such a crime, shall be deemed to be a
terrorist offender.

(2) A person who is not a member of a terrorist
organization, but who commits a crime on behalf of an organization, is also
deemed to be a terrorist offender and is punished as a member of the
organization.

Article 7-

(1) Those who establish,
administer or become members of a terrorist organization to commit crimes for
the purposes stipulated in Article 1, using force, violence, pressure, fear,
intimidation, oppression or threat, shall be
punished in accordance with Article 314 of the TPC. Those who organise the
activities of the organization shall also be punished as the administrators of
the organizations.

(2) A person
who makes propaganda for a terrorist organization shall be punished with a
prison sentence of one to five years. Where such a crime is committed through
the press or media, the penalty shall be increased by half. In addition, a
judicial fine of 1,000 to 10,000 days shall be imposed on the owners of such
press and media organs. The upper threshold of this punishment shall be 5,000 days
for their chief editors. The acts and behaviour stated below shall also be punished
according to the provisions of this paragraph:

a)Completely or partially
concealing one’s face for the purpose of concealing one’s identity
during assemblies and demonstrations that become propaganda for a terrorist
organization

b)Carrying the emblem or the
signs of a terrorist organization, shouting slogans or broadcasting them
through sound systems [loudspeakers] in a way to demonstrate that a person is a
member or supporter of the organization, or wearing uniforms on which there
emblems and signs belonging to a terrorist organization

Where the crimes stipulated in paragraph
two are committed at the buildings, premises, offices or extensions of
associations, foundations, political parties, professional or workers'
institutions or their affiliates, or at educational institutions or students'
dormitories or their extensions, the punishments mentioned in this paragraph
shall be doubled.

Acknowledgments

This report was written by Emma
Sinclair-Webb, researcher in the Europe and Central Asia division of Human
Rights Watch; it was reviewed and edited by Holly Cartner, executive director
of the Europe and Central Asia division, Aisling Reidy, senior legal advisor,
Joanne Mariner in the Terrorism and Counterterrorism Division, Zama
Coursen-Neff in the Children’s Rights Division, and Robin Shulman, a
consultant to the Program Office. It was translated by Özlem Dalkıran
and Veysel Eşsiz.

We thank public prosecutors working on
terrorist offenses in the Special Heavy Penal Courts who spoke openly on the
condition of remaining unnamed in this report; and members of the Adana
Security Directorate. We are particularly grateful to the juveniles recently released
from pre-trial detention and members of their families who we interviewed in
Adana.

[2]See, for example, speech to
the AKP group meeting in parliament:
http://www.beyazgazete.com/video/2010/06/18/erdogan-acilim-bitmedi-ayni-kararlilikla-devam-cnnturk.html
(accessed August 23, 2009).

[3]In July 2008, the general chief of
staff discussed the number of fatalities over 24 years in a speech to the
press: see
http://www.tsk.tr/10_ARSIV/10_1_Basin_Yayin_Faaliyetleri/10_1_7_Konusmalar/2008/org_ilkerbasbug_iletisim_16092008.html
(accessed April 29, 2010). The official figures were stated as follows: 6,482
soldiers; 32,000 PKK members; 5,660 civilians killed. Nongovernment
organizations have expressed doubt about the accuracy of these official
figures, and in particular, the number of PKK deaths, which they believe may
include a significant number of civilians misidentified as PKK members.

[4]See the December 2006 study by
Hacettepe University’s Institute of Population Studies,
http://www.hips.hacettepe.edu.tr/tgyona/TGYONA-AnaRapor.pdf (accessed April 30,
2010).

[6]The UN special rapporteur on the
protection and promotion of human rights in the course of countering terrorism
criticized elements of the Anti-Terror Law in follow-up statements to his November
2005 visit to Turkey. A/HRC/4/26/Add.2:
http://daccess.un.org/doc/UNDOC/GEN/G06/149/42/PDF/G0614942.pdf?OpenElement,
November 16, 2006 (accessed September 8, 2009).

[7] In April 2010 the Election Law
(Law 5980, published in Official Gazette, April 10, 2010) was amended so that
it is no longer a criminal offense for parties conducting election campaigns to
use languages other than Turkish. However, article 81 of the Political Parties
Law still prohibits languages other than Turkish.

[8]During the early history of the republic, the
government forcibly crushed a number of armed insurrections against the central
authority of the state in majority Kurdish-populated areas of the country. A
nascent Kurdish nationalism colored some of these uprisings; some also carried
religious overtones against the new secular order; in others, residents of
peripheral areas resisted incorporation into a centralizing and homogenizing
new state. The state authorities denied the very existence of Kurds, including
their cultural or linguistic identities. During the conflict with the PKK,
officials began to acknowledge the Kurds as an ethnic group. The literature on
the issues includes: Robert
Olson, The emergence of Kurdish nationalism and the Sheikh Said
rebellion
(Austin: University of Texas Press, 1989); Martin van Bruinessen, Agha,
Shaikh and State: The Social and Political Structures of Kurdistan (London:
Zed Books, 1992); Hamit Bozarslan, La Question Kurde: Etats et
minorités au Moyen-Orient (Paris, 1997).

[15]For details of the November 13, 2009
parliamentary debate, see the press reports of the government and
opposition’s speeches to parliament, including
http://www.radikal.com.tr/Radikal.aspx?aType=RadikalDetay&ArticleID=964199&Date=13.11.2009&CategoryID=78
(accessed November 13, 2009).

[16] See Human Rights Watch press release
and Q and A on the closure of the DTP:
http://www.hrw.org/en/news/2009/12/11/turkey-kurdish-party-banned (accessed
July 1, 2010).

[19]See, for example, speech to
the AKP group meeting in parliament:
http://www.beyazgazete.com/video/2010/06/18/erdogan-acilim-bitmedi-ayni-kararlilikla-devam-cnnturk.html
(accessed August 23, 2009).

[20] For an account of some of the
protests held in cities in the southeast, as well as in cities such as Istanbul
and Mersin, see the news report in Özgür Politika daily
newspaper, July 15, 2008, http://www.yeniozgurpolitika.org/yazdir.php?hid=34988
(accessed July 8, 2009).

[21]February 15 is the anniversary of
imprisoned PKK leader Abdullah Öcalan’s 1999 capture by Turkish
security forces in Kenya and return to Turkey and is marked annually with
unauthorized protests in cities in the southeast and in other parts of Turkey
among some PKK sympathizers and Öcalan supporters.

[22]Newroz (Kurdish)/ Nevruz (Turkish) is
the traditional festival of New Year in the Persian calendar, which marks the
arrival of spring at the March 21 equinox and is celebrated especially by the
Kurdish community in Turkey.

[23] For example, see the quarterly
reports issued by the online news service Bianet as BIA Monitoring reports;
“216 Defendants ‘Celebrated’ World Press Freedom Day Behind
Bars,” Bianet online news service, May 9, 2010,
http://www.bianet.org/english/freedom-of-expression/121859-216-defendants-celebrated-world-press-freedom-day-behind-bars
(accessed May 19, 2010). See also the weekly bulletins and reports of the
Initiative for Freedom of Expression,
http://www.antenna-tr.org/sites.aspx?SiteID=48 (accessed May 19, 2010).

[24] Human Rights Watch researcher in conversation with police
officers employed at the Anti-Terror and Security Branches of the Diyarbakir
Security Directorate and in the Anti-Terror Branch of the Mersin Security
Directorate, Ankara, February 26-27, 2009, at a European Commission TAIEX
training workshop on the use of force in policing.

[25]“Written replies by the
Government of Turkey to the list of issues (crc/c/opac/tur/q/1) to be taken up
in connection with the consideration of the initial report of Turkey under
article 8, paragraph 1, of the Optional Protocol to the Convention on the
Rights of the Child on the Involvement of Children in Armed Conflict
(crc/c/opac/tur/1)”: CRC/C/OPAC/TUR/Q/1/Add.1, September 2, 2009.

[26]See Ankara Heavy Penal
Court No. 11, reasoned verdict, dossier 2007/366; decision 2008/251, October
22, 2008. The case concerns a group who joined two authorized Ankara
demonstrations on December 17, 2005 and February 19, 2006 that were attended by
a broad coalition of trade unionists and activists. The defendants in this
trial were accused of knowingly and willingly aiding and abetting an illegal
organization (the armed Marxist Leninist Communist Party: MLKP), These
charges were based primarily on evidence that they had shouted slogans at
the demonstration, had carried banners with slogans, and had publications
sympathetic to the outlawed organization in their possession. Documentation
provided to Human Rights Watch by lawyer Rahşan Aytaç Sala.

[28]Turkish Penal Code Articles
61 and 62 on sentencing outline the criteria for judges to apply discretionary
reductions in sentencing, which are in most cases reductions of one fifth.

[29] For example, an adult demonstrator who is
prosecuted for “committing a crime on behalf of the PKK,” may be
sentenced to 7.5 years in prison (which becomes six years and three months
after discretionary reductions), plus an additional year for “making
propaganda for the PKK,” (which becomes 10 months after discretionary
reductions). The total sentence to be served would be 8.5 years (which becomes
seven years and one month with reductions). The demonstrator may be sentenced
on more than one count of “making propaganda” if he or she has
attended more than one demonstration, increasing the sentence by one year (10
months after reductions) for each count. On top of this, many demonstrators are
sentenced to further prison time for violating the Law on Demonstrations and
Public Meetings (Law no. 2911). A demonstrator may receive a five-year sentence
(which becomes four years and two months after discretionary reductions) for
“armed resistance to police dispersal” (Article 33/c, Law no.
2911). The three charges together would bring the sentence up to 13 years (11
years and three months, with reductions). Had the demonstrator resisted police
dispersal on more than one occasion, he would receive separate sentences on each
count, increasing the sentence.

[30]The possible 28-year total prison
sentence consists of the following components: a 10-year sentence for
“membership in an armed organization” on the basis of having
“committed a crime on behalf of the organization” under Articles
314/2, 314/3, and 220/6 of the Turkish Penal Code (increased by one-half to 15
years, on the basis of Article 5 of the Anti-Terror Law providing for
aggravated sentences); a five-year sentence for “making propaganda for a
terrorist organization” under Article 7/2 of the Anti-Terror Law; and an
eight-year sentence for having forcibly resisted dispersal of a demonstration
by the police under Article 33/c of the Law on Demonstrations and Public
Assemblies. This leaves out other possible charges, such as “damaging
property,” (Articles 151/1 and 152/1a, Turkish Penal Code), which would
increase the sentence by up to three years, “damaging public
property” (Article 152/1a, Turkish Penal Code), which could increase it
up to six years, and “resisting a public official” (article 265/1,
Turkish Penal Code), which would increase the sentence by up to three years.

[31]Because this report chooses to highlight the application
of the offense of “committing a crime on behalf of an
organization,” with its much more severe penalty, we have chosen not to
focus here on prosecutions under article 7/2 of the Anti-Terror Law.

[32]However, under the 2006 amendments,
those under 15 years of age were able to receive a suspended or delayed
sentence, which was not applicable to children ages 15-17 and adults convicted
under the Anti-Terror Law (article 13).

[35]See the report on the incidents by the
Diyarbakir branch of the human rights group Mazlum Der;
http://www.mazlumder.org/haber_detay.asp?haberID=94; by the Diyarbakir Bar
Association; http://ortakpayda.org/makale.asp?foo=read&feox=326; by the
Human Rights Association;
http://www.ihd.org.tr/index.php?option=com_content&view=article&id=106:28-mart-2006-darbakir-olaylarina-k-celeme-raporu&catid=34:el-raporlar&Itemid=90.
See also the report by Democratic Society Party (DTP) members of parliament,
dated April 14, 2006,
http://ortakpayda.org/boxes.asp?foo=read&feox=62&ronin=4. For an
assessment of the incidents blaming the PKK by a department of the Ministry of
Interior, and including a selection of critical commentary from newspaper
columnists, see http://www.arem.gov.tr/rapor/basin/teror_son_donem_olaylar.htm
(all accessed September 8, 2009).

[36]See the reports by Mazlum Der and the
Human Rights Association discussed in the previous footnote. The Diyarbakir Bar
Association report summarizes it as follows:

“Ten
civilians died as a result of excessive use of force by law enforcement
officials, over 500 individuals were injured, over 500 workplaces were damaged.
203 children aged 12 to 18, and 364 adults, were detained on the grounds of
having participated in violent protests. 396suspects were placed in pretrial
prison detention after testifying before the Diyarbakir prosecutor and the
courts. From their testimonies and doctors’ reports it was established
that during apprehension, law enforcement officials used
“disproportionate force” against them, and that during transfer and
in places of detention, they were subjected to ill-treatment and torture in
violation of the laws.”, http://ortakpayda.org/makale.asp?foo=read&feox=326.
See statement by Amnesty International, http://asiapacific.amnesty.org/library/Index/ENGEUR440052006?open&of=ENG-TUR,
April 12, 2006, and also a
brief account by Amnesty International of children reporting ill-treatment and
torture by the police: “Europe and Central Asia: Concerns in Europe & Central Asia
bulletin: January—June 2006,” entry
on Turkey, http://www.amnesty.org/en/library/asset/EUR01/017/2006/en/20f477d6-d3fa-11dd-8743-d305bea2b2c7/eur010172006en.pdf,
pp.84-6 (all accessed September 8, 2009).

[37]In January 2010, three
police officers were indicted in the fatal shooting of 17-year-old Mahsun
Mızrak, who died after police shot a tear-gas cannister at him, which
embedded in his skull. Information supplied to Human Rights Watch by lawyer Barış
Yavuz, March 2010.

[38]The ninth chamber deals
with crimes against the state, and crimes punishable under anti-terrorism
legislation, among other areas.

[43]The Ninth Penal Chamber of
the Court of Cassation decision no. 2009/11316, November 11, 2009. The court
quashed one count (out of three) against Özer under Article 32/c of
the Law on Demonstrations and Public Assemblies. A retrial on that one count is
underway, but the final sentence will only be altered by 18 months. Information
supplied by lawyer Baran Pamuk, Diyarbakir, March 6, 2010.

[45]In one
typical case that reflects the lower sentencing of the past, Yılmaz Aslan
and Osman Akın were accused of having burned tires and shouted
pro-Öcalan slogans during a demonstration in Ceylanpınar, Urfa, on
April 3, 2006 (Diyarbakir Heavy Penal Court No. 6, Decision no. 2007/464,
December 11, 2007, in the possession of Human Rights Watch). They were charged
under the Anti-Terror Law with “making propaganda for a terrorist
organization,” (Article 7/2) and were sentenced to six months and 20 days
in prison. They were at liberty during their trial proceedings, and their case
is still on appeal. Aslan and Akın were accused of conduct identical to
that of many of the demonstrators whose cases are examined in this report, yet
their sentence was substantially less than would be the case today.

In
another example, demonstrator Hasan Bayram was accused of shouting
pro-Öcalan and pro-PKK slogans and being part of a group throwing stones
at the police during a January 11, 2006 public assembly in Diyarbakır. The
occasion for the public assembly was the reading of a statement protesting a
disciplinary punishment reportedly meted out to Abdullah Öcalan in prison.
After the statement was read, the assembled crowd reportedly resisted dispersal
and threw stones at the police. Bayram was caught on the police cameras. He
received a 10-month prison sentence for “making propaganda for a
terrorist organization” (Article 7/2 Anti-Terror Law) (Decision of the
Diyarbakır Heavy Penal Court No. 4; Decision no. 2006/193, September 29,
2006, in the possession of Human Rights Watch).

[46]A coalition of NGOs called the Justice
for Children Initiative (Çocuk
için Adalet Girişimi) should
also be mentioned for its efforts to raise the issues publicly, via the media
and advocacy efforts.

[47]See Concluding Observations on Turkey
of the Committee on the Rights of the Child, 52nd session, September
14, 2009,
http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-OPAC-TUR-CO1.pdf (accessed
March 21, 2010).

[54]The most significant change is to Article 33/c of the Law on
Demonstrations and Public Assemblies, which reduces the penalty from five to
eight years to one to three years. See fn. no. 37 above. For new law, see “Terörle
mücadele kanunu ile bazi kanunlarda değişiklik yapilmasina dair
kanun” (“Law amending the Anti-Terror Law and other laws”)
(Law no. 6008), seeResmi Gazete (Official Gazette), July 25, 2010, http://rega.basbakanlik.gov.tr/main.aspx?home=http://rega.basbakanlik.gov.tr/eskiler/2010/07/20100725.htm&main=http://rega.basbakanlik.gov.tr/eskiler/2010/07/20100725.htm (accessed July 26, 2010).

[56]Table of cases provided to
Human Rights Watch by the Adana branch of the Human Rights Association, March
2010.

[57]Unpublished report supplied to Human
Rights Watch by lawyer Kezban Yılmaz, Diyarbakir coordinator of the
Justice for Children Initiative and board member of the Diyarbakir branch of
the Human Rights Association. The figures in this report update and provide
greater detail than an earlier report published on the website of the Human
Rights Association: see
http://www.ihd.org.tr/index.php?option=com_content&view=article&id=1487:2008-yili-kanunla-ihtilafa-dusen-cocuklar-raporu&catid=34:el-raporlar&Itemid=90,
May 2009 (accessed June 12, 2009).

[59] In cities such as Diyarbakır, assembling evidence towards
securing the prosecution of demonstrators involves the Anti-Terror and Security Branches of
the police, which routinely examine police video footage of demonstrations to
identify repeat offenders. Courts also rely heavily on the services of
lip-reading experts to determine the exact content of slogans shouted by
demonstrators on police video footage of demonstrations.

[60]Deprivation of normal political rights
enjoyed by citizens is applied to most individuals convicted of terrorism
offenses (according to Article 53, Turkish Penal Code), and we have not
repeated this elsewhere in the report since it applies in all the cases
examined.

[65]Diyarbakır
Heavy Penal Court No. 5 indictment, dossier no. 2009/790, dated May 14, 2009,
police report, verdict, and other case documents supplied to Human Rights Watch
by Mehmet Kocakaya’s lawyer Rehşan Bataray. Mahsum Akbaş,
Yoldaş Fırat, İdris Baran, and Ceylan Saybak are the other
students tried for participation in the same demonstration. The latter three
remain in prison. A second trial of four students who participated in the
same protest continues in Diyarbakır Heavy Penal Court No. 6. The students
on trial for participation in the same demonstration are Cihan Bahadır,
Abdullah Nas, Talat Uçar, and Sinan Kaplan. All four were remanded to
prison where they have remained for the duration of their trial.

[68]Diyarbakir Heavy Penal Court No. 4, record of
sixth hearing, February 25, 2010. The indictment against the three also
includes evidence of their participation in other demonstrations on various
dates. They were acquitted of most of the other charges. There is not space
here to go into details that are not related to the charges over the mother
tongue language protest on October 15, 2008, which forms the main evidence
against them. Two other students were also tried but acquitted of any
involvement in the October 15 protest.

[69]See Oral Çalışlar,
“Hapisteki Dicle Üniversitesi Öğrenciler”
(“The Dicle University students in prison”), Radikal daily
newspaper, March 7, 2010,
http://www.radikal.com.tr/Default.aspx?aType=RadikalYazarYazisi&ArticleID=984213&Yazar=ORAL
ÇALIŞLAR&Date=07.03.2010&CategoryID=98 (accessed March 23,
2010). Five of the signatories are women students held in Diyarbakır
E-type prison.

[75]Cases demonstrating excessive use of
force and two fatal shootings by the police during the unauthorized Nevruz/Newroz
demonstrations in Van on March 22, 2008, were documented in the December 2008
Human Rights Watch report, “Closing Ranks Against Accountability:
Barriers to Tackling Police Violence in Turkey,” see,
http://www.hrw.org/en/reports/2008/12/05/closing-ranks-against-accountability-0.

[76]Diyarbakir Heavy Penal Court No. 4,
reasoned decision (2008/192, March 10, 2009. Case documents on file with Human
Rights Watch. These are the prison terms they will actually serve if approved
by the Court of Cassation, minus time already spent in pre-trial detention.

[77]“Ne AKP ne Ergenekon çözüm demokratik
cumhuriyet”: the slogan refers to the perceived polarization between the
government and opposition forces characterized by the Ergenekon trial—the
ongoing trial of former senior military and gendarmerie figures, special police
units, journalists, academics, and others, for allegedly fomenting conditions
for a military coup to unseat the government.

[79]Diyarbakır Heavy Penal Court No.
4, reasoned decision, 2009/579, December 29, 2009. After reductions based on her age and
conduct during the trial, B.S. received a prison sentence of four years and two
months for “committing a crime on behalf of the PKK” (Article
220/6, Turkish Penal Code) punishable as “membership in the PKK,”
(Article 314/2, Turkish Penal Code) and two years, nine months and 20 days in
prison under Article 33/c of the Law on Demonstrations and Public Assemblies,
and six months and 20 days in prison for “making propaganda for a
terrorist organization,” under Article 7/2 of the Anti-Terror Law.

[80]Reported to Human Rights
Watch by lawyer Emin Aktar, head of the Diyarbakir Bar Association, March 5,
2010.

See
press coverage of the case, http://www.milliyet.com.tr/Guncel/HaberDetay.aspx?aType=HaberDetay&ArticleID=1208008&Date=09.03.2010&Kategori=guncel&b=Elinde%20yarim%20limon%20var%20diye%209%20yil%20ceza%20aldi
(accessed March 23, 2010).

[91]Human Rights Watch did not document
other cases in 2009 in which courts handed down verdicts at first hearings. In several cases mentioned
earlier in this report, the Diyarbakır courts did convict defendants at
their first hearings in February and March 2010.

[95]Diyarbakır Heavy Penal
Court No. 4, decision no. 2009/171; decision: 2009/495, August 18, 2009. Human
Rights Watch is in the possession of a copy of the reasoned decision. On
September 3, 2009, the same judge issued a dissenting opinion in a second case
bearing similarities to that of Mehmet Fidan, arguing again that there was
“not clear and convincing evidence” that the two defendants
convicted by the court and sentenced to prison terms of 10 years and five
months and 11 years and three months for joining a Cizre demonstration had
committed a crime on behalf of the PKK. Again the judge concluded that the
defendants should have been acquitted. The case reference is Diyarbakır
Heavy Penal Court No. 6, no. 2009/78. Record of hearing at which verdict was
issued on file with Human Rights Watch.

[97] European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR), 1950, 213
U.N.T.S. 222, entered into force September 3, 1953, ratified by Turkey on May 18, 1954.

[98]Convention on the
Rights of the Child (CRC), U.N. Doc. A/44/49 (1989), entered into force
September 2, 1990 ratified by Turkey on April 4, 1995.

[99]Article 90 of the Constitution of the
Republic of Turkey, 1982, provides “International agreements duly put into
effect bear the force of law.”

[100]Article 21 of the
ICCPR provides that: “The right of peaceful assembly shall be recognized.
No restrictions may be placed on the exercise of this right other than those
imposed in conformity with the law and which are necessary in a democratic
society in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of the
rights and freedoms of others.” Article 15 of the CRC provides similar
protection with respect to the right of children to assemble. Article 11 of the
ECHR provides that: “ Everyone has the right to freedom of peaceful
assembly and to freedom of association with others …. 2 No restrictions
shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the rights and
freedoms of others.” Article 19 of the ICCPR, Article 10 of the ECHR, and
Article 13 of the CRC provide similar guarantees related to freedom of
expression.

[107] See “Report of the Special
Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Martin Scheinin,” E/CN.4/2006/98,
http://www.coe.int/t/e/legal_affairs/legal_co-operation/fight_against_terrorism/3_CODEXTER/Working_Documents/2006/Sheinin%20E-CN.4-2006-98.pdf
(accessed September 8, 2009), December 28, 2005.

[108]The special rapporteur raised the following general
concern: “The Anti-Terror Act is drafted in a way that allows for an
overly broad application of the term terrorism. Article 1, paragraph 1, defines
’terrorism’ mainly with regard to its aims. It appears to
criminalize the aims as such since it does not require any act to have been
committed in pursuing the listed aims, which include the aim to change the
’political, legal, social, secular and economic system’ of Turkey
and the aim of ’weakening … the authority of the State.’ The
clause is therefore not restricted to tactics employed in the furtherance of
these aims that amount to deadly or otherwise grave violence against persons.
Instead, the provision is applicable to any kind of act that entails
‘pressure, force and violence, terror, intimidation, oppression or threat’
[emphasis added].” A/HRC/4/26/Add.2,
http://daccessdds.un.org/doc/UNDOC/GEN/G06/149/42/PDF/G0614942.pdf?OpenElement,
November 16, 2006 (accessed September 8, 2009).

[113]Concluding Observations on Turkey of
the Committee on the Rights of the Child, 52nd session, September
14, 2009, http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-OPAC-TUR-CO1.pdf
(accessed March 21, 2010).

[117]The prison
population has doubled in four years. The head of the Prison Directorate in the
Ministry of Justice has underscored the difficulty he faces in explaining to
European delegations the extremely high proportion of remand prisoners in
Turkey (at the end of May 2009 running at 61,000 remand prisoners and remand
prisoners with convictions not finalized and/or under appeal out of a total
prison population of 111,000 prisoners),

[119]The issues relating to the treatment of
juvenile suspects and defendants merit separate and much fuller consideration
in their own right. Since the focus of this report has been the application of
anti-terror laws to demonstrators and the urgent need to revise those laws, we
do not attempt here to widen the discussion.

[120]Of the children interviewed, three were girls
and the rest boys: S.Ö., N.K., A.B., Ö.C., B.O., H.D.,
İ.Ö., E.A., M.Ö, B.Ö., B.E. (names withheld). Eight
children and members of their families were interviewed separately on June 8-9,
2009, by a representative of Human Right Watch and three representatives of the
Justice for Children Initiative (comprising a children’s rights activist
and trained social worker with experience working with juvenile offenders, a
second children’s rights activist and specialist on child development,
and a psychologist). The children were interviewed in private. Two children
were interviewed separately by a representative of Human Rights Watch on a
separate occasion. Full interviews with the children and their families and
withheld identities of children on record with Human Rights Watch.

[121]In order to protect the minors
involved, Human Rights Watch identifies children only by their initials The
full identities of the children are known to Human Rights Watch.

[122]Following the
children’s’ complaints of ill-treatment to the Ceyhan public
prosecutor, the prosecutor opened an investigation ( investigation no. 2010/583). Information reported to
Human Rights Watch by Adana lawyer Tugay Bek, March 2010.

[123]The Bejing
Rules, para. 10; Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, principle 16(3).